(back to table of contents of FNF publications)
 

I will organize this session around three questions which seem important to me. First I will ask the question and give my own tentative answer. Then I will open the floor for other contributions.

Question 1. How big is law? To adequately describe it would we need ten words, ten commandments, ten pages, ten volumes, or ten lifetimes?

Question 2. What aspect of human nature or human culture drives government law to supplant voluntary legal systems, as it has done throughout much of the world in recent history?

Question 3. Assume we found ourselves empowered to dismantle a system of government law. Assume for instance that we had purchased from the citizens of a small country their consent to implement our constitution. How would we dismantle the government system of law? In what sequence? What problems could we expect to encounter?

(back to table of contents of Archives of FNF)
 
 

Question 1. How big is law? To adequately describe it would we need ten words, ten commandments, ten pages, ten volumes, or ten lifetimes?

So what do we mean by law? Do we mean to include all practices which are necessary, useful, prudent, polite, humane, wise, civil, punishable, restrainable?

The question "how big is law" seems important to me because it asks "can we expect to manage law?" If we propose to write down the law, and if we expect police and courts to enforce the law, how much text, how much complexity and subtility are we dealing with? Do police have to have Ph.D.'s, or just good hearts?

To develop my answer, I need to talk some about public space. It seems to me that much of law deals with public space. For an obvious example, consider a public commons or public roadway. Since this space belongs to everyone and noone, no private party is motivated to challenge misbehavior in this public space. And thus we rely upon public law, appropriately I believe.

For another example, consider the content of textbooks in government schools. This content is public space: it is created by acts of government and thus generally can be regulated only through acts of government.

It seems to me that, for any given time or place, existing government law defines the public space. And notice that new government laws create new public spaces. Once government has passed a law about some subject, then that subject is public space and henceforth must be policed (if at all) by government.

Therefore I believe that the amount of government law which we might think necessary would depend upon the amount of public space we think necessary. If we assume lots of public space, then we would need a lot of government law.

However, in a libertarian realm, public space would be limited. Most space would be private, so most possible wrongs would have a private victim who was motivated to confront the wrongdoer. So we could satisfy most of our needs by assuring the existence of a system of courts in which private parties could confront wrongdoers. These courts would be motivated, as described for instance in The Enterprise of Law by Bruce Benson, to establish and follow precedent. Thus we need not attempt to write the law these courts would enforce. These courts will develop and enforce their own law.

A limited-government approach would be for the state to establish a system of courts. In this case, the public space would be limited to that establishment of courts. The written government law, by which I mean the constitution and the acts of legislative bodies, would establish these courts, their structure and operation. But government would not define the law enforced within these courts.

So my answer, based upon my present understanding, is this: The law which addresses domestic security (but not national security) would provide for establishment and maintenance of a system of courts. This should fill no more than a few pages.

It is also interesting to notice a few things about ostracism. Libertarians generally accept ostracism as a legitimate social tool, since it is normally noncoercive and not an act of the state. The effectiveness of this social tool depends upon the amount of public space available to the offender. Public space offers an escape from ostracism, and thus limits its power. Using language from math, the effectiveness of ostracism in a society seems to be inversely proportional to the amount of public space in that society.

(back to top of page)

Question 2. What aspect of human nature or human culture drives government law to supplant voluntary legal systems, as it has done throughout much of the world in recent history? (This question is borrowed from correspondence of Bruce Benson.)

• This question leaves me groping. I will give a few guesses.
• a) People considering a proposed law consider that the law will work. It looks on the surface like the right thing to do. The choice of whether or not to favor a proposed law tends to look like a choice between:

law - certainty, known solution.

no law - ambiguity, random evil.

• b) On the surface it might seem economical to rely upon government to create and enforce law. If government takes charge, one imagines relief from one's own responsibility.
• c) Government looks like insurance, offering relief from fear at manageable cost. People want insurance.

People are not rational about risk taking. In business school I took a course titled "Decision Analysis" which dealt with how investors make decisions, but which might apply to the present subject. People it seems are risk- averse in avoiding calamities: a person worth $100 who faces a 1-in-100 chance of losing everything will pay $2 for insurance to cover that risk, even though the statistical (expected) value of the policy is only $1. This is why insurance companies can exist. And perhaps it explains why people cling so desperately to their governments.

• d) Recalling that public space gets trashed because no one owns it, notice that the public forum is itself a public space. People can advocate bad policy and never pay the consequences. The act of lobbying for a law to protect a special interest constitutes, in my opinion, littering in a public space. Policy debate gets littered with all kinds of trash ideas.

In this vein notice one of the cherished institutions of the democratic state, the voting booth. This institution allows people to trash the public space with their own selfish programs. The voting booth provides a sanctuary in which the voter can participate in ugly crimes, without fear of retribution.

• e) It might be original sin. Seriously, I have searched and tried to discover why statists demand state action. One theory, which seems as good to me as any, is that some individual statists may experience self hatred, or self loathing, which, through psychological flip-flop, makes them insist that other people must be managed.

Question 3. Assume we found ourselves empowered to dismantle a system of government law. Assume for instance that we had purchased from the citizens of a small country their consent to implement our constitution. How would we dismantle the government system of law? In what sequence? What problems could we expect to encounter?

An example from which we might learn is the scandal in the savings & loan industry. The Reagan administration recognized that this industry was stifled with regulation, and removed some regulations. But the government continued to insure deposits. The resulting disaster could, I believe, have been avoided if the government had stopped insuring deposits before it loosened regulations, or if both sets of laws had been repealed simultaneously.

So some acts of government regulate the folly that could result from free application of other acts of government. When government creates a public space which might get trashed, then the best hope of policing that public space may be through other acts of government.

Another example is a point that Charles Murray has made about drug legalization. He does not favor immediate and blanket legalization because the American society has such a network of government-paid supports for people who overdose. In this society people are not held accountable for their own folly. He fears legalization would lead to massive abuse at public expense.

So it seems that laws need to be dismantled carefully, making sure that no public space is left unregulated.

With this view it may seem prudent to take this unpopular approach: first remove protections and safety blankets, and then remove regulation. But a problem with this sequence might be that regulations might inhibit (or prohibit) formation of private institutions of protection. I would assert that human society does need many of the protections provided (or attempted) by government. Of course I prefer private institutions of protection. But those private institutions may not exist where the state has played protector. This deserves more study and understanding.

During discussion in the Forum these comments were noted:

• Regarding the safety of deposits in banks not regulated by government, one participant noted that depositors naturally need information about the security of banks which they consider. There is a market for this information, and we could expect businesses to provide it.
• One safe step in dismantling government could be to abolish the monopoly enjoyed by certain state enterprises, such as the U.S. Post Office. The Post Office could continue for a time, but competitors would be allowed the chance to start growing.

Note

Also, in the context of this discussion about public space, note that public space can be expanded by use of the word "we." If enough people, speaking in a public context, speak of how "we should solve X", then many people begin to assume that X properly belongs in the public sphere, even though it was previously assumed to be private. Thus I have come to believe that mere use of the word "we" often expands public space and erodes private space.

Sometimes in FNF work I use "we". And then I mean to speak as a member of a movement to describe a libertarian realm. I can not pretend here to speak on behalf of others outside this movement. I am aware that even my limited usage of "we" may reasonably make some libertarians nervous.

(back to main text)

(back to table of contents of FNF publications)