I remember having a discussion with someone about the ideal rules for society. The argument they made went something like this: rules should be simple, obvious, and easy to remember. Do you want to be governed by the Bill of Rights? Or the Code of Hammurabi? (Or did he say "the Ten Commandments?")
Unfortunately, it's not that easy. Libertarians (like me) sometimes fantasize about dismantling the state, tearing down the edifice of the police and regulatory state, and clearing out the underbrush of countless laws and regulation that stifle human activity. We'd be left with a few simple, easily enforceable rules, the thinking goes. If you buy the libertarian worldview, that all sounds great. Until you remember that the Code of Hammurabi was not a set of edicts. It wasn't a series of commands invented by a king acting arbitrarily on his own whim. It was the codification of the already existing laws of that society. Disputes arise in any society, and someone somehow has to adjudicate those disputes. Thus a common law arises. The obvious, simple rules emerge from this process. "Don't kill anyone, or we'll come after you. Don't steal, or we'll come after you." But what exactly is the punishment for these offenses? It can't be totally arbitrary, where one murderer gets tortured to death and the next murderer pays a fine of ten camels to the victims family and goes on with his life. We have to adjudicate these disputes with some kind of consistency, which looks an awful lot like legislation.
And where is the cut-off between theft and fraud and not-even-a-crime? If I own a golden urn and you steal my urn, that's obviously theft. If I pay you 50 shekels for a golden urn and you don't make with the urn, then it's pretty clear you've defrauded me. But what if we have different expectations that we both think are reasonable? To me, of course a golden urn has the following dimensions, and is solid gold straight through. To you, of course a golden urn has these different dimensions, and can be hollow between the interior and exterior walls, or the interior can be made of some other metal and coated in gold. Whose expectation of what "a golden urn" means are correct here? Have you defrauded me? Am I being unreasonable? The obvious solution is to specify in the contract exactly what I mean by "golden urn." But all the interesting problems occur when the specifications of the contract aren't clear, which happens all the time. The urn-buyer and the urn-maker might have to go before a judge or some other moderator, who decides that some prevailing cultural expectation about the size of an urn is this, and the price paid for the urn implies such-and-such a proportion of gold versus other metals.
Simple rules my butt! The rules of society might include obscure and arcane rules about urn-making, house-building, food safety, marriage, divorce, child-care, tithing, parking-your-boat-on-the-fucking-street, and all sorts of things that obstruct our commercial and personal intercourse. This edifice of stifling regulation can emerge organically from case law, just as surely as it can from an over-zealous legislature. Sure, we can try to get around the case law by specifying contractually "This piece of case law does not apply. Transacting parties both agree to this stipulation!" But if someone (some company) tries to do this too much, perhaps an unsatisfied customer can argue that "Nobody reads all that garbage, and besides this provision is totally unreasonable." And perhaps a sympathetic judge can invalidate that part of the contract.
So how much government is inevitable and how much of it is unnecessary? I have opinions about this, but I'm not terribly sure of anything. I think some regulations are clearly invented, created by pure fiat, and would not exist in a free marketplace. I'm thinking in particular about ridiculous regulations in California that force companies to warn consumers about non-existent risks. But what about food safety? Surely you are defrauding me if I think I'm buying food but you deliberately poison me. Surely you're also defrauding me if you sell me food but poison me by failing to exercise the due standard of care (failed to refrigerate, or failed to keep pests out of the food during storage). But what is "the due standard of care"? If it's a "standard" of care, that sounds a lot like a regulation, even if it's one implied by common law rather than being imposed by a legislature. What if you sell a food with known dangers? Like sushi, or raw milk, or something that's fermented? You can always sell it with the disclaimer, "Eat this at your own risk," but there is still some reasonable expectation that you made the food as safely as you could. There could still be grounds for suing if the preparer of food didn't exercise due caution. What is the "non-standard standard" of care?
What about drug policy? I think that a free-market, anarcho-capitalist society would not have drug prohibition. A large proportion of society would certainly disapprove of drug use, but it would not be worth the costs and inconveniences to try to stop it. But, oh, there are issues. There would still be some people getting so high they become belligerent and hard to control. (I think this is a massively overblown problem, but no doubt it happens.) Some cities are littered with dirty, discarded syringes, which is a public health hazard. Intoxicated driving would presumably still be a problem. And some people will be so intoxicated and consumed by their habit that they fail to care for their children. As I've argued before, these problems can be targeted with laws and rules that specifically target the problem behavior but don't target drug use in general. But it's possible that some kind of mild prohibition emerges, even without being imposed by a legislature. I don't have a crystal ball that lets me peer into the world as it would be under anarcho-capitalism, but if I did I wouldn't be too surprised to find something that disappoints my drug-policy-libertarianism.
What about minimum wage and other labor regulations? Would there be some kind of judicially imposed expectation about what to pay someone? Or that a low hourly wage somehow implies other perks and accommodations?
I think it's a facile brand of libertarianism that says we'd have almost none of these stifling rules if the government disappeared (or shrank to a minimalist night-watchman state). It's possible that this brand of libertarianism actually requires government, a government that actively identifies and eliminates annoying "regulations" imposed by the common law. None of this is to defend or justify the existing system of government or the massive regulatory/welfare/police state. I think that's a horrible system that bends to easily to the whims of the 51%. Most days, I'm still an anarcho-capitalist. I still think the world would be far less horrible if the government shrank or disappeared. I think we'd have far more opportunities to escape the tyranny of shitty, simple-minded populism. But I sometimes imagine looking into that crystal ball, and in that fantasy I am always bracing myself for disappointment.
I'm trying to explore and identify the limits of my libertarianism. These are the thoughts that bother me, because I don't have good answers for anything. I'm not the only one in this space, either. There are many thoughtful libertarians exploring this question. I remember David Friedman raising the question, "Is an anarcho-capitalist society even libertarian?" As in, does every community impose stifling restrictions on it's people? Does anarcho-capitalism create the kinds of societies that libertarians approve of or not? Read The Machinery of Freedom for a decent treatment of this. (Alex Tabarrok makes a similar argument in a post that I can't find at the moment.)
I don't know what spurred this post. I'm re-reading Albion's Seed, which discusses colonial America and the four dominant British cultures that colonized it. This was a small-government world, with most disputes being resolved within the community. This world still had incredibly restrictive rules and horrifying criminal punishment for minor offenses. And it was enforced not by an over-reaching outside government, but within the community. Neighbors flogging neighbors, sometimes over superstitious offenses. In one story, a merchant gets corporal punishment for...making too much profit! This punishment, once again, is imposed by a small community, not by a runaway regulatory state. (Paging Deirdre McCloskey. I sometimes wonder if that passage is what sparked her recent work on economic history.) It's a good reminder of just how bad things can be.
No comments:
Post a Comment