Legal Order Legal Order Without the State Dr Tom G Palmer Atlas Economic Research Foundation Cato Institute September School of Social Sciences and Political Philosophy CADI Konrad Adenauer ID: 494651
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The State and Legal Order, Legal Order Without the State
Dr
. Tom G. Palmer
Atlas Economic Research Foundation
Cato Institute
September School of Social Sciences and Political Philosophy
CADI
Konrad
Adenauer
Stiftung
Bucharest
12.
September.2011Slide2
Is the State Necessary for Freedom and Order?Some argue that it is a logical necessity, e.g.:
There must be a system of defense of life and liberty and of adjudication or disputes
That system must have a final arbiter
A final arbiter must have a monopoly
Without a monopoly of coercive power, it is not possible to induce people to behave properly
Only a state can overcome the transactions costs involved in creating public goodsSlide3
Is the state is necessary to achieve personal identity?
Passports
Birth CertificatesSlide4
Some Believe the State Is Responsible for….Everything
“Government is 'implicated' in everything people own. . . . If rich people have a great deal of money, it is because the government furnishes a system in which they are entitled to have and keep that money.”
Professor Cass
Sunstein
Cass
SunsteinSlide5
The presumption is that all “Surplus” is Attributable to the StateBut without a surplus, no state could be formed in the first place….Slide6
“What is a State?”
“a state is
that human community which (successfully) lays claim to the monopoly of legitimate physical violence within a certain territory
, this ‘territory’ being another of the defining characteristics of the state.”
Max Weber, “Politics as a Vocation” [1919]
Max Weber (1864-1920)Slide7
How is Wealth Acquired?
“There exist in the world only two great parties; that of those who prefer to live from the produce of their labor or of their property, and that of those who prefer to live on the labor or the property of others…”
--Charles Comte
Le
Censeur
EuropéenSlide8
An Organization of the Political Means
Franz Oppenheimer (1864-1943)
The “economic means” and the “political means”:
“There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one's own labor and the forcible appropriation of the labor of others.”
“The state is an organization of the political means.”
--Franz Oppenheimer,
The StateSlide9
What Economic Means Must Precede the Political Means?Slide10
A Memory of the Conflict in an Old Story
“And Abel was a keeper of sheep, but Cain was a tiller of the ground.”
Genesis 4, 1-16Slide11
Empires of Nomads over CultivatorsSlide12
The Role of the Middle East….Slide13
From Roving Bandits to Stationary Bandits
Mancur
Olson 1(932-1998)
“If the leader of a roving bandit gang who finds only slim pickings is strong enough to take hold of a given territory and to keep other bandits out, he can monopolize crime in that area – he can become a stationary bandit.”
--
Mancur
Olson,
Power and ProsperitySlide14
Maximizing Gross Domestic Product (GDP) or Capturing the “State Accessible Product” (SAP)
“The ruler…maximizes the state-accessible product, if necessary, at the expense of the overall wealth of the realm and its subjects.”
“the state-accessible product had to be easy to identify, monitor, and enumerate (in short, assessable), as well as being close enough geographically….”
--James C. Scott,
The Art of
Not
Being Governed
(2009)Slide15
A Case Study: The Norman State, 911
Hrólfr
,
aka
Duke Rollo of NormandySlide16
The Norman Conquest of England: 1066Slide17
Characteristic Features of Modern States
Monopolization of Law
Replacement of Customary Law by Imposed Law
Claim to “Sovereignty”
Creation of an “Underlying Nation”
Systems of Social Control – Weights and Measures, Compulsory Schooling, Passports, etc.
Creation of “Non-Exclusive ‘Public’ Goods” and Monopolization of Their Provision
Systemic “Rent Seeking”Slide18
A look at the problem of sovereignty
“Majesty or sovereignty is the most high, absolute, and perpetual power over the citizens and subjects in a Commonwealth…”
“Custom acquires its force little by little and by the common consent of all, or most, over many years, while law appears suddenly, gets its strength from one person who has the power of commanding all.”
Jean
Bodin
,
Les Six
livres
de la
République
, 1576Slide19
As such, the sovereign is defined to be the
source
of law and therefore
above
the lawSlide20
Spoliation/Rent-Seeking
The Significance of
Concentrated Benefits
and
Diffused CostsSlide21
Is the State Necessary?Earlier I discussed social
welfare,
so let’s consider public
goods generally, including law and order and defenseSlide22
Public GoodsLet’s start with public goods generally, then move to some particular cases, including
law
and order, and defense against aggressionSlide23
Defining Characteristics of Public Goods
Non-
Rivalrous
in Consumption
Non-Excludable (or, more modestly, exclusion is costly)Slide24
Rivalrousness of Consumption is a Function of Group Size
Consumption of a swimming pool is
nonrivalrous
, up to some point, creating a “Club Good”
Bundling
rivalrous
and excludable goods with
nonrivalrous
goods is a common means of utilizing common means of exclusion and pricing for private goodsSlide25
Perhaps voluntary provision can provide social welfare, but what about “free ways”?
Maybe not, but what about “pay ways”?
Most roads are constructed without state financing.
Toll roads are financed by users.
A great deal of “infrastructure” is provided through fully voluntary action.Slide26
De Jasay’s “Ethics Turnpike”
Rectitude
Altruism
Kantian Interest
Tribalism
Supergame
Straddle
Social ContractSlide27
Existence is a Proof of PossibilityEven the American
legal system is more competitive, less monopolistic, and more voluntary than most people think
Bail Bondsmen and Bounty Hunters
“Private Security Firms”
Locks and Self-Defense
Etc., etc., etc.
If voluntary provision of public goods is impossible, why is it so common?Slide28
What are some preconditions to voluntary provision of a liberal legal order?
Distinction between the services of
Providing rules and decisions
Providing enforcement of rules and decisions
Relying on restitution rather than retribution
A social order relying on cross-cutting loyaltiesSlide29
Something to consider…1. If the existence of a legal system is itself a public good, and the public goods argument for the necessity of the state is correct, then the state could not be created voluntarily, through a social contract, but could only be imposed by force
2. Moreover, all citizens would have incentives to shirk and to free ride off of the voluntary contributions of others, meaning that the state could not be administered democratically through voluntary actionSlide30
“All of us, without exception, carry this inherited poison within us, in the most varied and unexpected places and in the most diverse forms, often defying perception. All of us, collectively and individually, are accessories to this great sin of all time, this real original sin, a hereditary fault that can be excised and erased only with great difficulty and slowly, by an insight into pathology, by a will to recover, by the active remorse of all.”
--Alexander
Rüstow
,
Freedom and Domination
Alexander
Rüstow
(1885-1963)