Is the punitive power of the State needed?

[triangleman]

As it says on the can. Does civilized behavior require a State that can do violence against us? If so, to what extent?

[2046]

It's clear from Rand's smashing of the Hobbesian myth that civilized behavior does not require a state. However, I'm not certain that really touches upon Rand's attempts at justifying the state, since that had more to do with whether or not objective law requires a state.

[Hairnet]

The function of the state is to retain the use of retaliatory force in the hands of an objective third party institution.

The institution is objective because it defines its rules and procedures and explains them to the public, and it is third party because when two people have a violent encounter, it steps in to arbitrate the dispute.

If you are robbed for instance, and you fail to stop them in the act, what should you afterwards? Should you attempt to regain your stolen goods by force? How should you go about doing this? What about punishment for those who stole your goods? The state takes this task away from you and makes it so that no single person should ever have to bear the burden of being judge, jury, and executioner alone without any guidance.

With a state there are procedures that everyone knows about ahead of time, before any crimes take place. It is fair and impartial (even if the system may not be completely perfect). This prevents anger. misinformation, and mob rule from causing tragedies.

[2046]

I don't think this quite captures Rand's arguments because she never mentioned the principle that there must be an objective third party, just that she thought the market could never produce objective law, and she thought defense companies would therefore do battle all the time.

But, if we analyze this requirement of an objective third party (which is really more of a Lockean objection) I don't think it works. It is a fallacy to argue from the position that everyone should submit their disputes to a third party to there should be a third party that everyone submits their disputes to. That's like arguing from everyone likes at least one TV show to there's at least one TV show that everyone likes. It just doesn't follow.

You can have everyone submitting their disputes to third parties without there being some one third party that every one submits their disputes to. Suppose you've got three people on an island. A and B can submit their disputes to C, and A and C can submit their disputes to B, and B and C can submit their disputes to A. So you don't need a monopoly in order to embody this principle that people should submit their disputes to a third party.

But moreover, not only do you not need a government, but a government is precisely what doesn't satisfy that principle. Because if you have a dispute with the government, the government doesn't submit that dispute to a third party, it is the judge in cases involving itself. Therefore it fails its own criterion on this argument's own grounds.

[Hairnet]

You are missing the other aspect of this though. It is not just that a third party must exist, but the rules and procedures by which people are judged must apply to everyone and these rules must be understandable. This means how search warrants are obtained, what proof is, how evidence must be handled, how a trial must be conducted, and how a jury must be selected. Having different rules for everybody on this matter is dangerous. Obstruction of justice would essentially become someone's right politically as they would have no obligation to follow the procedures of a court trial, nor would a court have to be consistent about what it does in a court trial. In addition to this forum shopping would be rampant.

Also, you can appeal against the state to a third party. We do have separation of powers in this country, meaning that the state is never just one group. It is so many groups that the state actively has some parts competing against the other at all times.

[2046]

You are missing the other aspect of this though. It is not just that a third party must exist, but the rules and procedures by which people are judged must apply to everyone and these rules must be understandable.

Certainly we must recognize an aspect of objective law (well actually two that you brought up here) is that it must recognize procedural rights, and it must be understandable. Please note that nowhere did I disagree that there should be such things. So far, I fail to see an argument to the effect of how the market cannot produce such things.

Also, you can appeal against the state to a third party. We do have separation of powers in this country, meaning that the state is never just one group. It is so many groups that the state actively has some parts competing against the other at all times.

And certainly this is true. But I don't think this is an effective defense. Somehow appealing to the legal department of General Motors for a wrong committed to me by the sales department of General Motors doesn't seem to me to satisfy the third party principle.

[Nicky]

As it says on the can. Does civilized behavior require a State that can do violence against us? If so, to what extent?

What do you mean by "civilized"?

The concept "civilized" (in the sense I suspect you're using it) originates from the Roman idea of law. So it presupposes a set of laws enforced by a government.

You could of course define civilization some other way (as people do, they use it to mean "polite", or "peaceful", etc.). But then you shouldn't try to suggest that your concept has anything to with modern civilized societies (built on the Roman concept of "civilization") and their benefits. In fact, to avoid that implication, you should probably pick a different word altogether for your concept.

[Hairnet]

Certainly we must recognize an aspect of objective law (well actually two that you brought up here) is that it must recognize procedural rights, and it must be understandable. Please note that nowhere did I disagree that there should be such things. So far, I fail to see an argument to the effect of how the market cannot produce such things.

And certainly this is true. But I don't think this is an effective defense. Somehow appealing to the legal department of General Motors for a wrong committed to me by the sales department of General Motors doesn't seem to me to satisfy the third party principle.

I think they have incentives to do otherwise. Its is not hard to imagine companies catering to different groups by accepting and rejecting certain kinds of evidence, or in defining certain kinds of crimes. For instance imagine the different ideas of consent that a feminist, a southern baptist, a reasonable person, and a muslim have?

The difference between the General Motors and the United States government is unity of interest. I already said that The United States has no single interested group. General Motors basically is.

[2046]

So then I take it that you agree it's not impossible for the market to produce objective law, just that there are incentives not to. But the way I see it is rather that it is not impossible that a limited government produces objective law, just that the incentive structure makes it much harder and less likely to sustain.

And earlier you championed many groups competing against each other (your words) as a hallmark of "separation of powers" and "checks and balances," and that you didn't want just one group (after all, it had to satisfy the third party principle!)

You complain of different groups accepting differing standards of justice, yet I think that having these same groups competing for control over one monopoly organization having a much worse incentive structure, therefore why wouldn't the free market embody the ultimate extension of the separation of powers and check and balance principles, just as it did for the third party principle?

I am interested by what you mean by unity of interest though. I don't get what you mean, and also I have never heard that before.

[Hairnet]

No it is impossible. You can't get everyone to adhere to a single objective legal code, or a standard of due process voluntarily.

In a market people are allowed to not agree and go their seperate ways. I like this kind of wine, you like that kind of wine. I like these laws, you like those laws. Representative government allows the majority of of individuals to put their will onto others. Now most people can accept reasonable ideas abotu due process. Deviant groups can not overwhelm the majority opinion. They can however go their seperate ways and do things in their own communtties in a "market".That is unnacceptable. The "market" allows for disagreement on a very fundemental level that government does not. There should be no disagreement on these issues. The same rules, for everybody.

You think the government has a poor incentive structure for producing objective law. I disagree. Given we had the majority to achieve an fairly right wing government (Objectivist, or just really really conservative) the 20% left who were crazy could easily be put in their place and not interfere with justice. The 80% or so of reasonable people would by the nature of goverment come up with a single objective legal code.

[2046]

The concern is that, in the absence of a single monopoly agency of defense, anyone can just declare that he "opts out" of society's laws, and that we would all just throw up our hands and say "damn, he outsmarted us! What can we do? He opted out!" But this criticism, I think, portrays a misunderstanding of what a legal system is, and a kind of Platonic view of government.

A constitutional system exists insofar as it is a pattern of behavior in society. A government is one such pattern, the free market is another. People who decide to act against the legal system constituted by that society don't suddenly become untouchable, as if they disappeared into some alternate dimension.

This portrays a view the law as existing in some kind of magical plane "outside of" and above society, rather than existing internally, i.e. constituting whatever patterns of social activity make up a given society, so that if someone simply announces one day "I opt out of this law (e.g. the law prohibiting murder)" then we would all have to throw our hands up and say "aww darn it, he outsmarted us!" and for some unmentioned and undefined reason would not be able to respond. (Binswanger also hints something like this in his example of people walking down the street threatening others with guns.) Rather than be so foolish as to allow people to do this, we should have an "absolute guarantee" that all members of society will pledge themselves to follow the law. But since both government and the free market exist in society, not outside of it, as an ongoing pattern of action constituted by the members of society, then there is never such a mystical "absolute guarantee," not now, not under dictatorship, not under limited government, and not on the free market, not in any system.

You worry that, in an free market legal system, private courts could freely dispense with objective law. So they could. But how is this any different from government? So could government courts (as indeed they often do). So long as humans possess free will, nothing can guarantee that they will act as they should. The fundamental question is this: under which system, market competition or government monopoly, is there a better constitutional makeup for dealing with such abuses? I think there are powerful reasons to believe the competitive market provides a much more sophisticated and complex constitutional structure (by way of separation of powers and checks and balances) than any state monopoly.

Edited October 21, 2012 by 2046