I had something of an epiphany the other day, which spawned out of a discussion on externalities; I'm not sure if it's been suggested by an economist already, though in my somewhat-extensive reading of Block, Hoppe, Rothbard, Murphy and Friedman-- likely the five greatest contributors to propertarian anarchist thinking, certainly within both the Austrian and Chicago schools, I've never come across it: that law could persist on private property above and beyond the capabilities of its very owner.
First I'll define a term which is not exactly defined by consensus:
Law: A statement against particular actions-- written or unwritten-- made in such a way that some people expect coercive retaliation for making those actions.
So, by this definition, it's against the law for you to break into my house not because the government has declared it so, but because, if you did, you'd be dragged right out and locked in a cage by the police. Or else you might get shot by me. Further, not only will it happen (or at least, there is a chance that it will), you expect that it will happen (or at least, you expect there's a chance that it will), which provides at least some incentive for you to not.
Note that while the government police are the enforcers of many laws, people other than the police can still create and enforce law. If I build a fence around my house and sit on the front porch with a shotgun, I've made it illegal to break down that fence and walk through as, though nowhere have I written "breaking down this fence and trespassing gets you shot (a form of coercive retaliation)," my intentions are clear.
Distinguishing between those laws made and enforced by the government, and those laws made and enforced by people outside the government is done with the terms "public law" and "private law" respectively.
Many economists and political theorists have tried to envision a purely private-law society. That is, a society where all needed laws are created by non-government entities, thereby eliminating the need for government.
At this point you may be wondering how this would be different from having a government, so I'll provide another definition:
Government: An organization or entity with the capability to legitimately use physical force against a person for reasons other than that person posing a threat to the organization or entity itself, its possessions or its clients, or to an individual who voluntarily permits the organization or entity to assist him with physical force, or to his possessions or clients.
"Legitimately," in this sense, is to mean legally as described by the definition of law provided above.
"Clients" are people who voluntarily accept the service of, and voluntarily agree to pay the corresponding fee to, an organization/entity-- to which they are clients, the aforementioned organization containing the clients' servants. That is, a person must choose to be served and must choose to pay the fee while retaining the alternate option to not be served and to not pay the fee. Further, circumstances must be such that if he chooses not to be served and not pay the fee, he does not expect nor receive coercive retaliation by the organization which he chose not to be served by nor pay the fee to-- only then is this person a client, and only then does the organization contain his servant(s). Thus, the U.S. government, for example, does not contain our "servants," nor are we its "clients"-- if we chose not to be served by the U.S. government, and not pay the corresponding fee (taxation), we could expect, and would very likely receive, a life in prison. A more accurate depiction of this relationship is master and slave.
"Possessions," as I define them, are simply things that are owned, being owned by the person who uses them regularly and exclusively (with the exception of when he voluntarily permits others to use them). For reasons explained elsewhere on this blog, I don't ascribe to any natural human rights theory-- a person owns something if and because they use it while other people don't.
Note that governments allow their subjects/"citizens" to retain some or most of their possessions-- there are two major reasons for this. First of all, it is usually the case that possessions are better used by the people, so a government will end up wealthiest when it leaves those people to their productive devices and takes some resulting percentage in the form of taxation (though the exact optimum point of taxation for maximum tax revenue is still debated by economists). Second, a government is not necessarily able to take all possessions of its people. An organization is a government when it can legitimately use physical force in at least one qualifying circumstance, which means some uses of physical force may still be, even for a government, illegitimate; the government might expect that, beyond a certain point of coercion, its citizenry will violently revolt, making that level of intrusion against private law.
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I fully recognize that the provided definition for government is both wordy and unusual (being my own), and probably not described as well as I hope. A follow-up post will focus on defining government, including an explanation of why I defined it as such and a visual representation, which I expect to be quite helpful. For readers that did follow the above reasoning, I will now explain the epiphany:
If you'll recall this post (assuming you read it), and particularly the section on the private park builder (which I've now highlighted in red for your convenience): entrepreneurs with a vision to improve the value of a region of land can do so by buying all of it, making the improvement, and selling it back in pieces to the market. Hold that thought.
Consider if there were no government, but private law as determined entirely by contract. When you walk onto any space of private property-- and, of course, all land would be private property-- its owner would have established a contract you must sign beforehand (and that you will thus sign implicitly by walking there). All such contracts will likely include provisions like "I agree not to kill others," "I agree not to steal others' possessions," and the like, as the land owner would surely wish himself alive and his property safe. But it would also have to be fair in such a way that people are attracted to visit that property. If a store includes, in its contract, that you must pay the owner 10,000 dollars upon entry on pain of death, that owner would lose all his customers to his competitors. The law on any land would compete with the laws of others on other lands, and so the contracts would be made with a mind to balancing what residents desire with what the owner needs to be secure. Land owners would vow to settle disputes with private judges that have a reputation for fairness and strictly upholding the contract (otherwise the contract wouldn't mean much), and they would also pay up when they lost to preserve their own reputation. Because no one wants to play heads you win, tails I lose.
The description above is still not the epiphany, but a summarized model for private law most closely resembling Austrian economist Robert Murphy's description in his article Chaos Theory.
Now then, consider the following problem with the provided description: what if one just stays on his own land? Long past is the time when killing someone required being exactly next to them-- one could buy a rifle and shoot you through your window while sitting in his own house. As it happens, the contract on his land specifies that while others can't kill him, he can kill whoever he wants. No, he doesn't expect any visitors, but he's sociopathic maniac-- what does he care?
This is the problem I've found at least one possible solution to: an entrepreneur who buys plots of land, creates laws on them, and sells them back under strict contract that the new owner be unable to change those laws.
There's great economic sense in this because, just like the park builder, he can vastly improve the value of plots of land by ensuring that all neighboring plots of land will not contain people that can legally shoot you. Obviously the laws the entrepreneur does create would be limited, otherwise the houses he sells are unattractive to potential buyers-- I'd expect, in most places, limitations only on physically injuring one's neighbors. However, there could also be a market for communities with stricter limitations-- if enough people didn't like watching their neighbors smoke, for example, they may all choose to live together in a region of land where smoking on the front porch was illegal to some degree.
Though I will say I'm impressed with the idea, I see one major potential issue worth noting: the difficulty to set up. Most land is surrounded by other land, and that would mean trouble for any space where an adjacent space has no laws, assuming the adjacent space isn't separated by sufficiently obscure terrain. Furthermore, anyone who chooses never to move, for whatever reason, could never allow opportunity for an entrepreneur to impose laws on his property (assuming the owner chooses not to impose these laws himself for any of a few possible reasons I could imagine-- wanting neighbors, slightly raising the value of his land, etc.).
All said and done, it isn't perfect-- but neither is anything. It does seem, to me, immensely preferable to the status quo.
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