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Kinsella and Hoppe: Decentralize and Privatize

Stephan Kinsella posted this article, Legislation and Law in a Free Society, last week at the Mises Institute. In the article, he discusses the idea of the need for decentralizing law and judges, which would correct the errors inherent in our system of legislated law.

….there is much more certainty in a decentralized legal system than in a centralized, legislation-based system. When the legislature has the ability to change the law from day to day, we can never be sure what rules will apply tomorrow….

And Kinsella discusses the idea of time preferences:

….. When time preferences are lower, individuals are more willing to forgo immediate benefits such as consumption, and invest their time and capital in more indirect (i.e., more roundabout, lengthier) production processes, which yield more or better goods for consumption or for further production. Any artificial raising of the general time-preference rate thus tends to impoverish society by pushing us away from production and long-term investments……

And the problems inherent in central planning:

…The widely dispersed, decentralized character of knowledge and information in society simply makes it too difficult for centralized legislators to rationally plan the laws of society….

Because legislators cannot possibly know all the information throughout all of society that comes from each and every individual in society, they are “more likely to be influenced by lobbyists and special interest groups.” Hence the need for decentralizing law systems.

Because of so many centralized, legislated, “artificial” laws upon laws upon laws that no one could possibly keep track of, it is impossible for anyone to avoid breaking one law or another. And this is a situation that can cause lawlessness and chaos, and, most of all, a decrease in liberty and independence.

….. when legislation is thought of as the primary source of law, citizens become more accustomed to following orders, and thus become more docile, servile, and less independent…

Kinsella calls for legal codes to be privately, rather than legislatively, written, and “focus primarily on common-law developments.” In privately written law, judges can “ignore the lapses in the codifier’s reasoning,” and Kinsella calls for a “judge-found law” rather than a legislated legal system.

In a related, archived article from 2006, The Idea of a Private Law Society, Hans-Hermann Hoppe notes the inherent flaws in a democratic system of laws and government’s monopoly of territorial protection and judicial decision-making, and gives the idea of “Private Law.”

….First, every person is the proper owner of his own physical body….

….Secondly, every person is the proper owner of all nature-given goods that he has perceived as scarce and put to use by means of his body, before any other person….

….In the third place, every person who, with the help of his body and his originally appropriated goods, produces new products thereby becomes the proper owner of these products, provided only that in the process of production he does not physically damage the goods owned by another person…..

….Finally, once a good has been first appropriated or produced, ownership in it can be acquired only by means of a voluntary, contractual transfer of its property title from a previous to a later owner….

…Only private property makes it possible for all otherwise unavoidable conflicts to be avoided; and only the principle of property acquisition by acts of original appropriation performed by specific individuals at a specific time and location makes it possible for conflicts to be avoided from the beginning of mankind on…..

….. In order to maintain law and order, it is necessary that the members of society be prepared and equipped to pressure anyone who does not respect the life and property of others to acquiesce to the rules of society. How and by whom is this enforcement of law and order accomplished?…..

Hoppe notes that the common answer, unfortunately, is to turn to the state to resolve that.

….the state is an agency that exercises a territorial monopoly of ultimate decision-making. That is, it is the ultimate arbiter in every case of conflict, including conflicts involving itself, and it allows no appeal above and beyond itself. Furthermore, the state is an agency that exercises a territorial monopoly of taxation. That is, it is an agency that unilaterally fixes the price private citizens must pay for its provision of law and order….

Hoppe notes that when government has a monopoly in ultimate judicial decision-making, “justice will be perverted in the favor of government.”

….Predictably, the definition of property and protection will be altered continually and the range of jurisdiction expanded to the government’s advantage. The idea of eternal and immutable law that must be discovered will disappear and be replaced by the idea of law as legislation – as flexible state-made law…..

And with government’s power to expropriate private wealth and property, “As a tax-funded life-and-property protection agency, then, the very institution of government is nothing less than a contradiction in terms.”

And Hoppe has written elsewhere, it should be noted, that “the U.S. Constitution is itself unconstitutional,” in that many of the directions and functions the Founders gave to the various governmental apparatus in their Constitution directly violate the natural, inalienable, God-given rights that individuals have as human beings, as recognized in the Founders’ Declaration of Independence.

Economically, as Hoppe notes, given an institutionalized, legally protected and compulsory monopoly of territorial protection, the agents of government will maximize their income (via compulsory taxation) and minimize their production of protection.

In sum, the incentive structure inherent in the institution of government is not a recipe for the protection of life and property, but instead a recipe for maltreatment, oppression, and exploitation. This is what the history of states illustrates.

However, in a democracy such as ours,

….democratic equality before the law is something entirely different from and incompatible with the idea of one universal law, equally applicable to everyone, everywhere, and at all times….

We have now, not natural laws that are absolute (i.e. “don’t kill,” “don’t steal,” “don’t covet your neighbors’ stuff,” etc.), but legislated laws, as mentioned above in the Kinsella article, in which exploitation of others is instilled into everyday life. And the short-term, immediate gratification desires of special interests supersede long-term, economic calculations which can only be possible in a free market society.

These are ideas and solutions that Dick Cheney, who spent his entire adult life feeding at the public trough, and John McCain (same), or Harry Reed and Nancy Pelosi would never understand.

Just step back and take a look all around our society, and see how the legislative process and government’s monopoly of protection and jurisdiction has been used by the ruling class to subjugate and enslave the rest of society. The ruling, government class has merged itself with the criminal class (i.e. robbers, rapists, extortionists, embezzlers, trespassers, coveters, treasonists, traitors, counterfeiters, mobsters, etc.).

There is this attitude, especially this year, of, “if we could only get the right guy in there, then things will change…” (Yeah, like the ghastly Scott Brown, yech!) However, history has shown that with each election, such as with Reagan in 1980, the 1994 Republican Revolution, etc., it has only been a rearranging of the deck chairs on the Titanic.

And Hoppe’s solution to this problem?

….The solution lies in a private law society – a society where every individual and institution is subject to one and the same set of laws! No public law granting privileges to specific persons of functions (and no public property) exists in this society. There is only private law (and private property), equally applicable to each and everyone. No one is permitted to acquire property by any other means than through original appropriation, production, or voluntary exchange; and no one possesses the privilege to tax and expropriate. Moreover, no one in a private law society is permitted to prohibit anyone else from using his property in order to enter any line of production and compete against whomever he pleases.

More specifically, in order to be just and efficient, the production and maintenance of law will have to be undertaken by freely financed and competing individuals and agencies….

And Hoppe explains in the aforementioned article how that would be achieved.

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