Friday, July 13, 2018

For Spooner

Spoonman, come together with your hands
Save me, I'm together with your plan
Save me

-        Soundgarden


I will go through your points one by one; I take these from your second post, and haven’t tried to check these against your first…so if I missed something, this is why.  Your comments are indented and italicized.  Other indented comments are mine, taken from the subject post and offered, when necessary, to make clear what I actually wrote.

First, although we have reconciled on the following, I believe some further clarification is in order:

The point of your post was to refute libertarians who offer that agreement by contract would be sufficient to form a libertarian community. I pointed out this is a strawman as no such offer is being made by any serious libertarian.

Two things: first of all (and of lessor importance), I have had direct and personal exchanges with one very prominent (“serious”) libertarian on this topic.  To each of my scenarios or points, he offered a contractual stipulation that would “work.”  His framework was all contract; further to this point, I can think of at least one “serious” libertarian whose “model” suggests just such a framework.  Maybe I am wrong on this, but not about the direct and personal exchange that I had.

Second (and more important), who cares about the “serious” libertarians?  Get three of them in a room and you will have five positions on any point of correct application of the NAP (one reason I have done my best over the last few months to quit debating with any “serious” libertarian).  More important is to have a dialogue and discussion with the many people who might be interested in liberty (as libertarians see it) but choose not to because, to them, most libertarians are kooks.

Now, on to the rest:

Your ‘main objection’ to covenant communities is that they are no different than hiring/electing a strongman.

This was my main objection to Victor’s idea for solving the issue of change to a for-profit corporation’s mission statement by finding the right CEO.  It was not my main objection to the idea of contractual communities.  I introduced the entire section about “for-profit” examples with the following statement:

While less relevant [than the non-profit world], one could also examine the for-profit world.  Why I say “less-relevant”?  The non-profit / foundation world is a world of ideas – an organization is funded and sustained in pursuit of an idea.  Libertarianism is nothing if not an idea.

So, if one considers what I wrote in context, one could not suggest that this was my “main objection.”

You complain that contracts can never capture all possibilities, and I pointed out that neither does old and good law, and asked what the difference was.

It is a good objection, and one for which I don’t think I have a good reply.  As circumstances and technology evolved, there were times that the old and good law was not sufficient.  Maybe I am biased by the benefit that the old and good law was very slow to evolve, providing stability in the law yet leaving room for flexibility given circumstance; that, ultimately, it was the broader community that would decide if the evolution was “good.”

This compared to the more codified law, when once written leaves little possibility for flexibility – only debate (at most) about interpretation; when individualized as in a contract, offers no opportunity for broader acceptance (somewhat necessary if one wants to live in liberty).

In other words, custom might leave more room for flexibility than does codified law.  As long as custom is respected – in other words, “old” is accepted by default unless shown to be deficient in keeping the “good” of the law – this flexibility seems to me to be a benefit.  For the old and good law to work, the nobles must actually be “noble.”  But I guess for a contract to work, all parties must act noble as well.  Alas, we are lacking such men.

In any case, this objection might be your most valid, at least in my opinion.  I am not sure I have a great answer on this.

You said a meeting of the minds between two people was difficult and I simply noted the factually accurate point that it happens millions of times a day.

In the cases where it happens millions of times a day, two things are present: first, the transactions are simple, and second, they have been repeated often (i.e. we have been culturally conditioned to act in a certain way under these circumstances).

A contract for my liberty?  Maybe I just find this more complex that the run-of-the-mill million-times-a-day meeting-of-the-minds.  Maybe I am wrong; it just seems more complicated than buying a candy bar or ordering a meal.  But more on this shortly.

You equate a covenant community with constitutional ones and I pointed out that for a constitution to be a contract, all parties would have to sign on to it and asked for an example of a constitution that is like this.

This isn’t what I “equate,” so I won’t give you an example.  Here is what I wrote:

At its core, what is a contractual community but a community in which all residents have signed onto the constitution? 

Do you find a reason to disagree with this?

And how well have constitutions – a piece of paper – been respected by even those who have signed or drafted it? 

Do you find reason to disagree with this?  Keep in mind, the same people who signed the US Declaration of Independence and drafted and approved the US Constitution violated the terms almost immediately – regardless of what those who didn’t sign these did or didn’t do.

In any case, constitutions have virtually always been more effective at protecting those in power from the people as opposed to the other way around.

Do you find reason to disagree with this?  If so, please show me examples; I can offer dozens of examples to prove my point.  In the meantime, consider this examination of how the lack of a written constitution made insecure the medieval king’s position.

I pointed out that your idea of a libertarian order did not last. This is factually accurate. 1,000 years or 1,000,000 years, it failed. We need to learn what we can from this, the best example we have, and move forward.

Look, don’t pooh-pooh 1000 years until you have a better real-world example.  I don’t go for theoretical, pie-in-the-sky wet dreams thought up by “serious” libertarian thinkers.  I would like some evidence when it comes to experiments on human social behavior. 

So 1000 years is the best example I have of a society that came close to conforming what we today would describe as libertarian law. The classical liberal order lasted all of three minutes, and libertarianism?  We are still waiting.

In any case, it seems you have not been around here much otherwise you would know that learning from this example is fundamental to my work.  Maybe more specifically: why did the evolution from this medieval period into the classical liberal period devolve into the nightmare of the twentieth century?  My most complete post in pulling on this string might be this one (albeit, today I would include the Reformation in the listing).

I have ‘negotiated’ a few contracts for deals at least 1% as complex as buying a professional sports team. It was difficult, but as the example of buying professional sports teams demonstrates, not impossible.

So why did I put out that example?  On the continuum, do you view that negotiating a contract for your liberty will be more like buying a candy bar or more like negotiating a contract to buy a sports team?  Or will you accept a standard-template “liberty” contract, one that is ready to sign?

Because if the contract is as simple as buying a candy bar, you are right.  If it is complex at all (like anywhere to the right of buying a candy bar), well how many people are ready to shell out five or six or seven figures to their lawyer for this matter?  Conversely, liberty secured by commonly accepted cultural tradition?  That’s a pretty easy one to navigate.  We do a lot of this every day (to the extent we live in a community that holds to a common cultural framework)…without a contract.

And no, I’ve never got a few thousand people to agree to the terms a million times a day -- nor did I claim anything of the sort.

But then with whom and from whom are you going to negotiate your contract?  You don’t “do” liberty by yourself, nor will you and two or three close friends be sufficient to secure your liberty.  So, you need not have claimed it to make this a logical conclusion from your insistence regarding contract.

Continually in my business I hear, "you know, that isn't what the terms meant to me!" That’s why we have terms in our contract for what to do when someone says “you know, that isn’t what the terms meant to me!” It’s one of the least complicated portions of the contract.

The more complicated the contract, the more extensive are the notes taken by the lawyers; the more complicated the contract, the more effort lawyers place in document control and change management.  They don’t do this because they like to take notes.  They do this to demonstrate their client’s thought process throughout the negotiation: what the contract terms meant to his client.

Anyway, how would it look if your liberty was just left up to contract?  Ninety-eight percent of such problems resulting from a contract go away if the two people (or however many) who are negotiating a contract have a common view of how things will work, based on past dealing, etc.; the terms in the contract are given meaning by past action.  In other words, a common cultural tradition is what makes contracts work, and the more common the better they work.

And if the parties have a common enough view of how things work, they really don’t need a contract.


Why does someone who considers [himself] a Christ-follower think it’s ok to talk to people this way?

Sometimes the tables of the money-changers need a little overthrowing.  Anyway, you should hear me at work.


  1. Yet, another great post. Many thanks for all you do.

    I would make a comment but I just can't find anything to add, or to quibble about. :-)

  2. Spooner:> You complain that contracts can never capture all possibilities, and I pointed out that neither does old and good law, and asked what the difference was.

    BM:> It is a good objection, and one for which I don’t think I have a good reply.

    Me:> And then you proceed to give just the perfect reply: codification freezes the contract, 'law' can evolve with time. 'law' overrides contract so while you are free to write any contract you like, with an evolving law we keep the necessary flexibility to adjust the terms where and when necessary.

    But I would offer 2 another reasons why not everything can be covered by contract: the line between acceptable behaviour and unacceptable behaviour does not exist. Some behaviour is acceptable from certain people, but not from others.

    And second: law and trust are interrelated. Trust rises law, law rises trust. And trust, more than law or contract is the true glue of society. Replace law with contract and trust disappears, society stops functioning.

    1. Rien, technically Spooner is correct in the objection. What I offered, it seems to me, is the more flexible possibilities ofr solution in the old and good law - a way to resolve this point.

      More important - and it came to me while watching the first half of the World Cup Final: I wrote a post specifically on the regimentation of American football and the free-flowing nature of international fútbol.

      I think this is helpful in examining precisely this point:

      If I had remembered it earlier, I would have included in the post.

    2. Thanks BM. In re-reading, I understand it better now. And spooner was indeed correct.
      I must confess though that I have never followed either football or soccer. And am unfamiliar with the rules of either.

      That said, I can see why you made the comparison, your post explains that just fine.

  3. As a libertarian, I'm not sure codification is such a bad thing. I certainly prefer, e.g., Supreme Court justices who adhere to a strict, constructionist view of the U.S. Constitution over those who espouse the "living document" bastardizations.

    Yet, I agree the "old and good law" evolves over time. Perhaps this subject warrants further discussion.

    Your deft observations on law and trust dovetail nicely with this blog's ongoing open-borders exploration. Homogenous societies are high-trust societies. That's why multicultural societies almost invariably come unglued.

    1. Tony: "I certainly prefer, e.g., Supreme Court justices who adhere to a strict, constructionist view of the U.S. Constitution"

      Not to pick on you, I see this line all over. But it is inherently funny. First you pick a way of interpretation, and then you look at "the written law". In other words, the written law is in this perspective subject to the interpretation. Not the other way around. So in the end you do the exact same thing as the living document proponents.

  4. "In other words, custom might leave more room for flexibility than does codified law. As long as custom is respected – in other words, “old” is accepted by default unless shown to be deficient in keeping the “good” of the law – this flexibility seems to me to be a benefit." - BM

    When law is overly codified, or defined for every possible situation, I think it just becomes law of, by and for the lawyers, who then become judges, congressman, and presidents. An overly defined law might seem too rigid on its face, but it is actually far too flexible. Over-defined law belies the power to define the law, and once a power has achieved this level of legal potency, it will continue pressing its advantage further and further by expanding law and bending the interpretation of prior laws in its favor. This process can't end well, certainly not for liberty.

    Having said that, there does need to be a code to make explicit some of the more important cultural norms of society, so where do we draw the line?

    In all of these libertarian questions of 'where to draw the line,' I say this is precisely where we let the market decide. Providers of the service in question stake their future and wealth on a particular 'line' and customers, guided by economy, competency, and culture, take their pick; may the best line win. The smart providers of law and order will undoubtedly draw theirs most nearly to the cultural norms of the population around them. Supply and demand on an open market will give us the best mix of life by contract and life by cultural consent.

    "Conversely, liberty secured by commonly accepted cultural tradition? That’s a pretty easy one to navigate."

    But how do we secure liberty, or old and good law, along cultural lines without inadvertently setting up a power capable of redefining not only the interpretation of what liberty, or the old and the good, is, but what the culture holds them out to be as well? Where do we draw that line?

    Again, it's gotta be the market. This is why libertarianism first and foremost needs to be the premiere anti-monopoly tradition, anti-monopoly in everything, including the provision of law and its enforcement. And of course I don't mean supporting anti-trust legislation. I think one of the keys to the success of the Middle Ages was their non-monopolistic dispute resolution system. The king held court, but so did the nobles, and their powers, while nobles were actually noble, were actually independent of one another.

    I reread your post "The New Nobles" and I have to say it is a fantastic one. So glad you do what you do.

    1. ATL, you say "the market," or is it "THE MARKET"?

      In other words, decentralized or universal. The only libertarian answer is "decentralized."

      Then I will move to the region populated by true nobles! People like Pat Buchanan and Walter Williams, and not [fill-in-your-favorite left-libertarian names here].

  5. The issue in all human interaction, as I see it, is honesty, understanding of context and pride. Culture is vital as far as the first two items are concerned and can go a long ways in alleviating the third but pride will always be an issue.

    Written contracts (and lawyer notes :-)) serve the ultimate purpose of making sure all parties stick with the contract, which is necessary in a society of prideful liars who are more than willing to twist any context to their advantage. In our culture, such written instruments are vital - in a culture of integrity, completely unnecessary.

    May I propose, therefore, that any libertarian culture must enthrone integrity as a cornerstone with severe social penalties for its violation.

    1. I think this is right, which is one reason I believe that church leaders have a role to play - and one in which most today are currently failing miserably.

  6. Don't come over here / [And have orgies at] my gate
    Save it just keep it off my [lawn]. – Soundgarden [-ish]

    Regardless of how logically I explain to my wife that there are no clauses in our arrangement prohibiting blog posts as wall decor, she refuses to let me frame this and hang it in our living room...

    What follows is a single question preceded by (surely trivial) housekeeping (so long as you read “housekeeping” as “I’m-not-good-at-just-dropping-it”). Once I know the answer to the single question, I hope to be able to actually contribute something useful to the discussion.

    First, some (more) apologies: I chided you for equating covenant communities with hiring/electing a strongman -- terribly sorry, I read that totally wrong. Also, I am sorry for petulantly pooh-poohing your 1000 years. (As for your Dying Cheer lament, I have an addition for you to consider: 1 Samuel 8:6-19.) Last but not least on the apology front, if you consider beating a dead horse to be a violation of muh NAP then let me apologize in advance for the following:

    BM(-ish): “I’m not saying any serious thinker is offering that contract is sufficient for achieving and/or maintaining something like a libertarian order, but, not for nothing, I have to point out that Block has a framework that is all contract, and moreover, Hoppe’s model suggests to me that his framework is also all contract as well. I know: not exactly what I said was being offered, but you must admit it’s not far off. As for who it is that is literally offering that ‘contract is sufficient for libertarianism’ the answer is: kooky (self-styled) libertarians.”

    I see where you are coming from. But to be sure: neither Block nor Hoppe (nor any other libertarian thinker to my knowledge) has offered that ‘contract is sufficient’. As for the kooks actually making the offering: can you point me to such an offering? (It’s not that I doubt they exist, I just want to investigate one for myself.)

    As for constitutions vs contracts, I’m happy to be proven wrong regarding the following, but -- respectfully -- I still say you’re the one missing it: to claim covenant communities will fail based on examples of the (spectacular) failures of constitutions is a non sequitur. To claim covenant communities will fail based on examples of constitutions-where-all-residents-signed would be valid. But I (still) know of none?

    Now, for my question: what do you mean by a ‘Contract For Liberty’? You reference it throughout much of your post but I’m not sure what it is you mean by it?

    . . .

    [Note: just skimmed your latest article (All Men Created Equal) just prior to posting this comment and at the risk of getting ahead of myself, it seems you’ve anticipated where I intended to head next (depending on your meaning of ‘contract for liberty’): ‘what would a realistic modern day return to that which was good in the Middle Ages look like if not Hoppean-esque, contractual/covenant communities?’ The article also hints at the issue of the transition from sacred oath to contract (which I think may be the root of what you and I are discussing here): I hoped to make the case that while the development of contract and contract law coincides with the beginning-of-the-end for our 1000 year example, and that while its advancement followed to some degree the decline into decadence, to think that the advent of contract (as a sort of replacement for oath) was part of the decline is to mistake correlation for causation (I think). The argument I want to layout is that (written) contract and (written down) contract law was more of a culmination (a crowning achievement, even) of the time period, so let’s not throw the baby out with the bath water (I think). Looking forward to reading the post more closely this evening. Will chime in if I think I can be of use.]

    1. Spooner, I will leave the trivial housekeeping alone, as these circles will never end…and your one question is, perhaps, complicated enough (let alone your postscript).

      “What do you mean by a ‘Contract For Liberty’?”

      I just heard something by Paul VanderKlay, paraphrased: describe everything in your room. You can’t do it. You can understand all of it when you see it, touch it, want to use it. But you will never be able to describe and capture all of this on a list.

      Something like this. This is how I see a contract as complicated (and important) as one for my liberty. I should leave it at this because everything else I am about to write will only confuse this simple insight. So, if there is any confusion due to the following, refer back to this simple statement for context.

      I guess we could have a simple sentence: do not violate the non-aggression principle. But now…define aggression; define property; define appropriate punishment for all the various possible violations of the principle.

      Libertarians cannot even agree amongst us regarding these definitions, and most certainly not on application. Yet, somehow, we all (libertarians and non-libertarians) generally figure out how to live peacefully together (with the main confusion introduced by the acceptance by too many to the violations by men wearing official badges). But don’t ask us to put it all in writing and agree. It can’t happen.

      Because putting it in writing is another level entirely. I can deal with some stranger getting an abortion – even my neighbor (better if I don’t know about it); just don’t ask me to sign a contract putting my name to “legalizing” such a thing.

      Anyway, let’s say we agree on these definitions and applications – so, we have a contract with a few thousand definitions and applications. Now…all this does is open me up to live in a community that I abhor – sex orgies (or 1965 Chevy Novas on blocks, for your wife’s sake) on the front lawn and all that. This doesn’t work for me and my liberty. So now we have to agree on an entirely new and additional list.

      Anywhere in this process you could stop writing words and leave determination up to a tribunal or some such, I guess. Kind of like a supreme court?

      Or, we can live within a culture that has a functionally common understanding of the definitions, applications, and other civil behavior. Much simpler that writing a contract – one that would be impossible to write and even more impossible to sign.

      Now…I don’t want to suggest it is either / or. I put out the somewhat provocative post to examine the value of one vs. the other, to get feedback, to sharpen my thinking. Common culture can survive without a contract; contract cannot survive without common culture.

    2. (cont):

      To the postscript:

      “What would a realistic modern day return to that which was good in the Middle Ages look like if not Hoppean-esque, contractual/covenant communities?”

      It might look like this, but it will require much more than “contract.” Because there was more than “contract” (as we understand the term) involved – and I believe Hoppe understands this quite well. At minimum, Hoppe understands the requirement (not just nicety) of what would be labeled a traditional Western Civilization culture.

      But there is more. The nobles of the time were “noble” in the best sense of the word (and I haven’t looked in a while, but it would surprise me if Hoppe has not also said something similar). Contractual / covenant communities don’t stick to the charter absent nobles acting noble. This includes living with a view that recognizes that there will be justice either in this life or the next.

      I would add: the “oath” of the time was more than a contract; it included God as a party. I know this freaks a lot of “libertarians” out. It is my opinion that absent today’s religious leaders taking the Gospel seriously, there is little to no chance of moving toward anything approaching a sustainable liberty.

      I don’t know if we will ever again see any of this. What I do see hope for is political decentralization. With this will come more choice and more possibility to find a “home.” And why I write about the value (and necessity) of culture (and of a certain type) for liberty is to demonstrate to non-libertarians – or those on the fence – that not all libertarians are kooks.

      That’s enough for now.