From: sulko-m@acsu.buffalo.edu (Mark A. Sulkowski)
Newsgroups: alt.philosophy.objectivism
Subject: Re: Health Care Rights?
Date: 8 Jan 93 22:41:06 GMT
Organization: UB


	It is difficult for anarcho-capitalists to convey how a private
system of law could actually function.  Objectivists in particular are
unlikely to have read Bruce Benson's book _The Enterprise of Law_, which
is the best scholarly research into the subject that I am aware of.
There is so much to convey, an entire paradigm shift, that only reading
the entire book (hint!) can completely answer questions that objectivists
may have.  However, I have typed in a few pages from the book below which
may be helpful in establishing the basic concepts.

	Anarcho-capitalist law is refered to as "customary law".  Please
note that this system does not conform to the usual conceptualization of
anarcho-capitalism as "competing governments".  That characterization is
based on a different paradigm of law and will only mislead you.  A number
of objectivists in this conference have already made this error.


Mark Sulkowski
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   Law can imposed from above by some coercive authority, such as
a king, a legislature, or a supreme court, or law can develop "from the
ground" as customs and practice evolve.  Law imposed from the top --
authoritarian law -- typically requires the support of a powerful minority;
law developed from the bottom up -- customary law -- requires widespread
acceptance.  Hayek explained that many issues of law are not

	whether the parties have abused anybody's will, but whether
	their actions have conformed to expectations which other
	parties had reasonably formed because they corresponded to
	the practices on which the everyday conduct of the members
	of the group was based.  The significance of customs here is
	that they give rise to expectations that guide people's
	actions, and what will be regarded as binding will therefore
	be those practices that everybody counts on being observed
	and which thereby condition the success of most activities.

Customary law is recognized, not because it is backed by the power of
some strong individual or institution, but because each individual
recognizes the benefits of behaving in accordance with other individuals'
expectations, _given_ that others also behave as he expects.  Alternatively,
if a minority coercively imposes law from above, then that law will
require much more force to maintain social order than is required when
law develops from the bottom through mutual recognition and acceptance.

   Reciprocities are the basic source both of the recognition of duty to 
obey law and of law enforcement in a customary law system.  That is,
individuals must "exchange" recognition of certain behavioral rules for
their mutual benefit.  Fuller suggested three conditions that make a duty
clear and acceptable to those affected:

	_First_, the relationship of reciprocity out of which the duty
	arises must result from a voluntary agreement between the
	parties immediately affected; they themselves "create" the duty.
	_Second_, the reciprocal performances of the parties must in
	some sense be equal in value. ... We cannot here speak of an
	exact identity, for it makes no sense at all to exchange, say,
	a book or idea in return for exactly the same book or idea.
	The bond of reciprocity unites men, not simply in spite of their
	differences but because of their differences. ... _Third_, the
	relationships within the society must be sufficiently fluid so
	that the same duty you owe me today, I may owe you tomorrow --
	in other words, the relationship of duty must in theory and in
	practice be reversible.

   Because the source of recognition of customary law is reciprocity,
private property rights and the rights of individuals are likely to
constitute the most important primary rules of conduct in such legal
systems.  After all, voluntary recognition of laws and participation
in their enforcement is likely to arise only when substantial benefits
from doing so can be internalized by each individual.  Punishment is
frequently the threat that induces recognition of law imposed from
above, but incentives must be largely positive when customary law
prevails.  Individuals must expect to gain as much or more than the
costs they bear from voluntary involvement in the legal system.
Protection of personal property and individual rights is a very
attractive benefit.

   Under customary law, offenses are treated as torts (private wrongs or
injuries) rather than crimes (offenses against the state or the "society").
A potential action by one person has to affect someone else before any
question of legality can arise; any action that does not, such as what a
person does alone or in voluntary cooperation with someone else but in a
manner that clearly harms no one, is not likely to become the subject of
a rule of conduct under customary law.  Fuller proposed that "customary
law" might best be described as a "language of interaction."  Facilitating
interaction can only be accomplished with recognition of clear (although
not necessarily written) codes of conduct enforced through reciprocally
acceptable, well established adjudication arrangements accompanied by
effective legal sanctions.

   James Buchanan asked, if government is dismantled "how do rights
re-emerge and come to command respect?  How do 'laws' emerge that
carry with them general respect for their 'legitimacy'?"  He contended
that collective action would be necessary to devise a "social contract" or
"constitution" to define rights and to establish the institutions to
enforce those rights.  But collective action can be achieved through
individual agreements, with useful rules spreading to other members of a
group.  Demsetz explained that property rights will be defined when the
benefits of doing so cover the costs of defining and enforcing such rights.
Such benefits may become evident because a dispute arises, implying that
existing rules do not adequately cover some new situation.  The parties
involved must expect the benefits from resolving the dispute (e.g.,
avoiding a violent confrontation), and of establishing a new rule, to
outweigh the cost of resolving the dispute and enforcing the resulting
judgment, or they would not take it to the adjudication system.

   Dispute resolution can be a major source of legal change since an
adjudicator will often make more precise those rules about which
differences of opinion exist, and even supply new rules because no
generally recognized rules cover a new situation.  If the relevant group
accepts the ruling it becomes part of customary law, but not because it
is coercively imposed on a group by some authority backing the court.
Thus, good rules that facilitate interaction tend to be selected over
time, while bad decisions are ignored.

   Dispute resolution is not the only source of legal evolution under
customary law.  Individuals may observe others behaving in a particular
way in a new situation and adopt similar behavior themselves, recognizing
the benefit of avoiding confrontation.  Institutions for enforcement
similarly evolve due to recognition of reciprocal benefits.

   Consider the development of dispute resolution procedures.  No state-
like coercive authority exists in a customary system to force disputants
into a court.  Because rules of customary law are in the nature of torts,
the aggrieved party must pursue prosecution.  Under such circumstances,
individuals have strong reciprocal incentives to form mutual support
groups for legal matters.  The makeup of such groups may reflect family
(as it frequently did in primitive societies), religion (as in some
primitive groups), geographic proximity (as in Anglo-Saxon England),
functional similarity (as with commercial law), or contractual arrangements
(e.g., as in medieval Ireland and in medieval Iceland).  The group members
are obligated to aid any other member in a valid dispute, given that the
member has fulfilled his obligations in the past.  Thus, ability to obtain
support in a dispute depends on reciprocal loyalty.

   Should a dispute arise, reciprocal support groups give individuals a
position of strength.  This does not necessarily mean, however, that
disputes are settled by warfare between groups.  Violence is a costly
means of solving a dispute: if the accuser and his support group attack
the accused, the accused's group is obliged to avenge the attack.
Consequently, arrangements and procedures for non-violent dispute resolution
should evolve very quickly in customary law systems.

   The impetus for accepting adjudication in a customary legal system (as
well as in an authoritarian system) is the omnipresent threat of force,
but use of such force is certainly not likely to be the norm.  Rather, an
agreement between the parties must be negotiated.  Frequently, a mutually
acceptable arbitrator or mediator is chosen to consider the dispute, but
this individual (or group) will have no vested authority to impose a
solution on disputants.  The ruling, therefore, must be acceptable to the
groups to which both parties in the dispute belong.  The only real power
an arbitrator or mediator holds under such a system is that of persuasion.

   If the accused offender is found guilty, the "punishment" tends to be
economic in nature: restitution in the form of a fine or indemnity to be
paid to the plaintiff.  Liability, intent, the value of the damages, and
the status of the offended person all may be considered in determining
the indemnity.  Every invasion of person or property is generally valued
in terms of property.

   A judgment under customary law is typically enforceable because of
an effective threat of total ostracism by the community (e.g., the
primitive tribe, the merchant community).  Reciprocities between the
groups, recognizing the high cost of refusal to accept good judgments,
takes those who refuse such a judgment outside their support group and
they become outcasts or "outlaws."  The adjudicated solutions tend to be
accepted due to fear of this severe boycott sanction.

   Carl Menger proposed that the origin, formation, and ultimate process
of all social institutions (including law) is essentially the same as the
spontaneous order Adam Smith described for markets.  Markets coordinate
interactions, as does customary law.  Both develop as they do because the
actions they are intended to coordinate are performed more effectively
under one system or process than another.  The more effective institutional
arrangement replaces the less effective one.

   The evolutionary process is not one of deliberate design.  In the case
of primitive societies, for example, early kinship or neighborhood groups
were effective social arrangements for internalizing reciprocal legal
benefits -- as well as other benefits arising out of cooperative production,
defense, religious practices, and so on -- _relative_ to previously existing
arrangements.  Others saw some of those benefits and either joined existing
groups or copied their successful characteristics and formed new groups.
Neither the members of the earliest groups nor those who followed had to
understand what particular aspect of the contract actually facilitated
interactions that led to an improved social order...

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