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Richard Hammer:
 

I would like to express two concerns with Jack Coxe's proposal for a system which employs randomly selected arbiters given unlimited power [*].

That the proposal overlooks other potent, and readily available, forces which can be applied to achieve civil society.

Mr. Coxe seems to believe, and I agree, that the bad effects of state grow in human society because of the existence of two temptations: controllable positions of power and manipulatable procedures.

And his proposal, if I understand it, would counteract the evil of those temptations by making virtually everyone afraid to act upon those temptations. The proposal would restrain potential villains by threatening to overpower them with a greater force, the power given to randomly selected arbiters.

Thus I conjecture that Mr. Coxe believes that, in order to achieve restraint, a greater power is needed. On this point I tend to differ. I think deterrence can be achieved even when the deterring force is much smaller than the offending force.

Consider this example. On a two-lane highway two motorists, traveling in opposite directions, approach one another. There is great danger of head-on collision. But the motorists, by keeping in their own lanes, enter into a voluntary exchange. And they do this even if they enter this exchange with an imbalance of power, even if one is driving a ten-ton truck and the other is driving a motorcycle.

Mr. Coxe, if I am correct, might say that the truck driver, in order to be induced to keep his part of the bargain, must be threatened with calamity of magnitude equal to or greater than the calamity which the cyclist fears. But truckers do what they can to avoid colliding with cyclists, even where they face only minor inconvenience.

If we need a system of law which will deter person A from injuring the interests of person B, generally there is no need for equal measure in the loss felt. Generally any threat of real loss will deter person A.

Notice that the definition of "loss" here is important. I mean net loss, after all losses have been subtracted from all gains. This could become subtle, because we have to step into the value system of a person to know whether that person will feel net loss or net gain. We have to sum their psychological as well as their physical gains and losses.

Civil relations, I argue, require no more than that both parties to an exchange gain, or that both parties lose. The gross imbalance, between the penalties felt by the two drivers should the exchange fail, does not destroy our confidence in predicting that both drivers will try to fulfill their end of the bargain.

Regarding escalation of a power struggle:

Mr. Coxe points out that a power struggle can escalate, thus becoming increasingly threatening to the inhabitants of a nation. I agree. But I think the escalation of a power struggle happens only in special environmental circumstances. Otherwise, in more natural circumstances, power struggles dampen, decrease in size, and soon disappear from view.

The circumstances in which a power struggle escalates are, I believe, those in which one or both of the parties perceive that they might gain enough through victory to overcome the cost of the struggle. This happens, as I suppose Mr. Coxe will agree, where an existing apparatus of state power can use coercion (where there are manipulatable procedures).

Mr. Coxe's formulation, for an institution which could overpower even the worst consequences of a escalating struggle for power, seems reasonable to me—if I assume that the environment exists in which power struggles tend to escalate. But I am not prepared to concede that such an environment must exist. I want to believe that smaller institutions might be established, which counteract aggression closer to the source. One of my papers, "Hit 'Em, But Not Too Hard: Institutions for Giving Negative Feedback in Small and Manageable Increments" (Formulations, Vol. IV, No. 2), dealt with this question explicitly.

As I imagine a free society functioning, people would be guided into the channel we desire, of responsible exchange, by daily application of little, nuisance-sized, forces. And, since enough nuisances can bring down even a giant, a power struggle would never escalate to the size where correction could be achieved only by a single unlimited power. I have the impression Mr. Coxe's formulation overlooks this possibility.

That the proposal might give too much power to conformists.

I think I can imagine the system which Mr. Coxe describes producing an undesirable force toward conformity. It could crush tiny minorities, whose numbers were so small that they could not expect to get representation on a board of randomly-selected arbiters.

If for instance, in a nation where everybody goes to church on Sunday, some lone lunatic starts raving that Tuesday is the true Sabbath, a Sunday worshiper could call that lunatic to account before arbitration—and be sure of victory. In general, it seems to me, all innovations which start with an individual but which promise to overturn prevailing interests, could be crushed in their early stages by a board of randomly-selected arbiters.
 

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Jack Coxe:
 

I thank Mr. Hammer very much for printing my articles, for commenting on them, and for inviting me to reply.

If I thought that the randomly chosen arbiters would actually have unlimited power, I too would be very concerned. The system allows our basic natural motive—the motive to cooperate in order to avoid the resistance to any kind of offensive action—to limit the power of everyone, including the arbiters. This basic natural motive is allowed to function freely when there are no conflicting motives to sabotage it. Conflicting motives are generated by agreed-on procedures to coerce, and by agreed-on procedures for establishing agreed-on procedures to coerce.

If I was to design a way to limit the power of the arbiters, then someone would disagree with my version of limitation. This would be, in my opinion, the special circumstance that Mr. Hammer says is necessary in order for there to be an escalation of a power struggle. People have reason to struggle for power, not only when there is an existing procedure to coerce, but also when there is an existing procedure for establishing and limiting the procedure to coerce. Such procedures generate motives that conflict with our basic natural motive. And as long as a motive and an opportunity exist, someone will eventually respond, even if most people don’t. And when one person responds by manipulating a procedure to coerce, other people must find a way to deal with it.

Someone might say that the arbiters ought to be at least 16 years old. Another person might say it ought to be 18. How would we decide? Would we have an election to choose the age limit? Or would we have an election to choose someone to make the decision? Either way, a motive would be generated for people to campaign for their choice.

And if such a procedure was established, then sooner or later someone would argue that the arbiters ought to at least be able to read. And the same procedure that was used to establish age limits, could be used to establish a procedure for determining what constitutes the ability to read, and how to test it. Then someone would argue that no arbiter ought to be allowed on a case involving a friend or acquaintance which might cause bias. Then we would have to agree on a procedure for determining who is qualified to be an arbiter.

Someone would eventually argue that there ought be laws which the arbiters could not violate. But then we would have to agree on a procedure to choose lawmakers and judges to make and interpret the laws—more motivation for people to manipulate the procedures to overpower, rather than to seek agreement. Then the driver of the ten-ton truck might get drunk, cross over the line, and run over the man on the motorcycle. Then, responding to the offensive action of the drunk, people who are mad at drunks might look for ways to use coercive procedures to stop drunk driving. Then someone will say, "Why stop with drunk driving? Why not coercively regulate the safety features of motor vehicles," and so on and on.

Every man-made attempt to design a limit to power, generates a motive to further centralize the power to assign who has power and how much.

The founders of a free nation might not worry about power struggles since they know that probably none of them are interested in struggling for power. But if they attempt to find ways to limit power, then they would have to agree on a procedure for determining whose version of limits are to be accepted. This procedure would be an opportunity and therefore a motive for someone later to try to change those limits for some reason that seemed good at the time. When coercion is involved, what seems good to one person seems evil to another.

Resistance to offensive action is natural because it doesn’t depend on any man-made agreement or procedure. People naturally resist offensive action. If I offend you, the least you would do is wish that I was not doing whatever it is that offends you. If I continue to offend you, you will look for ways to stop me. If you are not able by yourself to stop me, then you will seek help from other people. Any kind of offensive action meets with natural resistance.

What I call "natural government" is the natural response to this natural resistance to offensive action. My natural response is for me to try to avoid offending you. And in order to do that, I must somehow learn how. This natural motive gives people reason to communicate and agree on routines, rules, customs, procedures, tolerances, and so on, which enable people to go about their business without offending each other.

A random arbiter system uses this natural motive—the motive to seek agreement in order to avoid offending people—and relies on it to limit the police and the arbiters as well as everyone else.

Suppose you were a randomly chosen arbiter. Everyone involved would have good reason to make sure that you were aware that anyone could, when you had finished your case, allege that you abused your temporary power, and call for a new random arbitration to settle the allegation. Knowing this, would you do anything other than bend over backwards to avoid any kind of prejudice, and to seek whatever advice you needed in order to make a decision that no reasonable person could construe as an abuse to your power? I can’t think of any contrary motive that could compete with this one.

It is true that my system provides no options for anyone to impose any kind of man-made limits on the arbiters. But all that is necessary to limit them, is to warn them of the natural consequences of any abuse of their power—just like warning a person of the natural consequences of touching a hot stove.

I agree with what Mr. Hammer says about hitting them but not too hard. And it is that kind of reasoning that randomly chosen arbiters would be motivated to seek out, in order to make sure no one accused them of abusing their temporary power. Every case is different. A lawmaker or rule maker can’t foresee every possible circumstance. But randomly chosen arbiters trying to be unreproachably reasonable and fair, would be motivated to make the best decision they can, specifically tailored for their own case. They would be motivated to hit only as hard as is reasonably necessary, and there would be no counter motive to sabotage this one.

The designers of a random arbiter system don’t need to be concerned with the relative magnitudes of power. The randomly chosen arbiters would be motivated to use only the magnitude of power that they confidently believe to be agreeable to any random sampling of society. The primary concern is to harmonize motives. Relative magnitudes of power are thereby adjusted naturally.

But far more important than the motives of the arbiters, are the motives of anyone who contemplates calling for random arbitration. In the vast majority of cases, the odds of gaining anything from random arbitration, would be less than alternative options, such as letting go of pride and prejudice and communicating sincerely with the adversary, seeking advice from experts—maybe even paying for the advice. Experience in a random arbiter system would progress toward the time when no one ever calls for random arbitration.

Mr. Hammer’s second concern was about pressures for conformity. His example about the person who gets crushed for preaching that Tuesday is the Sabbath implies that everyone who does not believe that Tuesday is the Sabbath would agree that no one should be allowed to preach it. If this was the case, what hope would any minority have in any kind of society?

There is abundant evidence in our society that many and maybe most people believe in tolerating minority ways of life as long as they don’t interfere with the ways of life of other people. If tolerance is a value of a significant portion of a society, then any minority could appeal to that value and have a better chance in a random arbiter system, than in any system that had a procedure which other minorities could manipulate to overpower them. Minorities who are discriminated against, could call for arbitration over and over again, until intolerant people finally realize that the resistance to their offensive actions is too much of a nuisance to put up with.

Conformity and many other issues must be dealt with in any arrangement of a society. A random arbiter system would motivate people to find mutually agreeable ways of dealing with them, whereas any presence of a procedure to coerce, or a procedure to establish a procedure to coerce, would tempt people to seek to overpower each other instead of seeking agreement. D

[* Web Editor's note: Richard Hammer is responding to "How to Limit Power and Protect Rights," Formulations, Vol. V, No. 4 (this issue)]

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