The reading for an Austrian Economics Reading Group in my area chose a 1989 David Osterfeld article written for the Journal of Libertarian Studies entitled ‘Anarchism and Public Goods Theory‘. The article itself was a decent discourse on how Courts, Law and Police may work in a free market anarchistic sense and led to some great discussion. The content itself of “how” an anarchistic society may come run was nothing too new for me as I’ve read more recent renditions of similar proposals. However, considering the date of publication, this may be one of the earlier Libertarian takes on the matter. Even with the similarities to similar articles, there are a few tidbits I’d like to pull out and further discuss. Osterfeld had some interesting thoughts on Common Law, the relationship between law and authority, and on the role of consent.
The distinguishing characteristic of judge-made law is that the judge is called in only to settle disputes arising between two parties, and his decision is binding only on the parties concerned. But since disputes can arise only when one individual feels his rights have been violated, the cases that the judge will be asked to decide will be limited to those concerned with the scope of individual rights. The process by which the common law emerges therefore determines, to a large extent, its content … In short, the common law probably moves the community in a libertarian direction. [emphasis in original]
The reason that Common Law is largely libertarian isn’t because the original common law initiators were libertarian, but because of the very nature of Common Law and the law Market itself. Just as the market ensures the production of products to meet consumer’s needs – while not dictating the product or the need, only that the product will be based on reality so that it will meet the need – the market ensures law is based on reality, or natural law, so that it will meet the needs of people. This also shows that libertarian law theory is consistent with the free market as very libertarian laws were developed by the market without the libertarian law theory guiding the way.
Law and Authority
Even granting that there can be law without legislation, would it be possible for a judicial system to operate in the absence of a government?
The popular view of law, derived from the mechanistic and power-grounded philosophies of Jean Bodin, Thomas Hobbes, and John Austin (and James Buchanan, Gordon Tullock, et al.?), sees it as the command of the “sovereign” to the subjects. But this exaggerates both the extent and effectiveness of power. Law, as the noted legal philosopher Lon Fuller notes (p. 209), does not operate in a social vacuum. Law is not so much vertical, i.e., the command from the sovereign, as horizontal, in that any functioning legal order is dependent on the “existence of a relatively stable reciprocity of expectations between lawgiver and subject.” Much the same thing has been noted by Hayek (p. 35):
It would . . . probably be nearer the truth if we inverted that plausible and widely held idea that law derives from authority and rather thought – of all authority as deriving from law—not in the sense that law appoints authority but in the sense that authority commands obedience because (and so long as) it enforces a law presumed to exist independently of it and resting on a diffused opinion of what is right.
Vertical versus Horizontal. Law and Authority. An example of both is the US System. The US system was built on a more decentralized system where the authority of its legislatures were to be derived from the people. Where the authority was derived from the accepted principles of the people. In modern times the use of the “executive order” easily shows that it is no longer that way. Instead law is now derived from authority. The US has devolved form a horizontal system to a vertical one.
The “conflict” here, is that libertarian law is commonly derived from the Non Aggression Axiom which briefly states that it is illegitimate to initiate force. So in a sense, the horizontal viewpoint expressed above implies that the acceptance of law and the authority that derives from it is retained within the individual. Yet, at the same time, human nature pushes the accepted law towards a more libertarian law which is derived from a central axiomatic structure.
An additional conflict is that while the horizontal viewpoint is the moral one; how does one conflate that with God? Is not all authority derived from God? That is an extremely vertical system, where authority is derived from not “sovereigns” but “The Sovereign”. The difference here can be seen in the dichotomy of the Great Commandments. Even in these simple statements meant to compress the Law and the Prophets there are still two separate things. “This is how you deal with God” and “This is how you deal with Man”. As the Creator, he designed and created our very nature so it makes sense that all true authority is derived from Him, but in that creation process God didn’t make different subsets of Man with different base human natures. He made Man and his human nature. How Christ stated that we deal with other Humans is simply that their authority over themselves is equal to our own. To love our neighbor as ourselves is to realize their authority. Realizing this implies the horizontal structure as given by Ostefeld and Hayek above.
The Role of Consent
The primary purpose of law is to regulate human behavior in such a way as to allow for the emergence of a social order in which individuals are able to interact. But a fairly common view is that in an anarchy every individual would have to give his consent to every law. This, of course, would mean that the only laws any individual would then be required to obey would be those he had consented to, thereby rendering an anarchy “lawless.” This view is based on a confusion about the role of consent. For any individual to give his consent he must be autonomous, i.e., free to give his consent. This freedom presupposes a framework binding on all individuals prohibiting anyone from interfering with the autonomous domains of others, i.e., from initiating violence. Clearly, if the area of consent, i.e., bilateral and contractual laws, is to operate effectively, the moral and legal framework within which it operates cannot itself be based on consent. Thus, the natural law qua common law provides the fundamental legal framework within which those laws based on actual individual consent operate. [Emphasis in original]
Depending on the interpretation of the above text and how ‘binding” is defined the author is either delving into full anarchy or is nearly there. Osterfeld uses the term “binding” throughout his discussion yet never define what he means by it. Does “binding” imply that punishment will take place if the “bonded” individual doesn’t follow through? Or does “binding” simply mean binding in the social sense where society will remove their consent from an individual who breaks the social bonds?
Osterfeld’s particular emphasis on a “framework binding on all individuals” seems to imply some minimal state that is able to bind a framework upon all individuals. Otherwise, how is this to be done?
A viewpoint that doesn’t require a minimal state is that there is no such framework, only common law. While it is agreed that an anarchist society isn’t “lawless” the only law that would, and morally should exist is law that is based on the consent of the individual. Some individuals may agree to consent to more laws than others but this is the most moral solution; albeit others might think it isn’t as practical as a framework and thus less moral. If ones moral code is based on the Non-Aggression Axiom or the Great Commandments, then law by consent is the closest social structure yet seen. If it doesn’t seem practical then something must be wrong, either the basis for one’s moral code, or our view of human nature and society.
How can law be based entirely on consent? What about those individuals who don’t consent and may feel that aggression is the answer? For the practical matters I will refer the reader to the original article as well the mentioned similar pamphlet as answering the inevitable practically questions would make this post far too long. But what about consent? Law is meant to govern the relationships between people so consensual law excludes the self-imposed moral structures of individuals (ie, I will not drink or smoke). The only law then that would exist by consent would then be contract law as contracts are how people commit (or bind in a social sense) themselves to act a certain way to other individuals. If this is so, then the only morally consistent society is one based on individuals doing as they see right. Scary thought to many, liberating to others. If freedom pushes the common law to be more libertarian AND a law system based on consent is the most moral; then the freest society will produce the most moral society. If the freest society is the most moral society, then the thought should be liberating and not scary. I for one, look forward to the day.
What do you think? I realize aspects of it are scary and some of the practical matters may still need to be worked out (what to do with murderers and sociopaths?), but I would encourage you to let your moral foundation form the practical matters rather than letting the practical matters form your moral foundation.