Some time back, the libertarian community was engaged in a massive food fight over the question of whether it favored a consequentialist versus a deontological basis for the philosophy. I think this boiled down to whether one came into Libertarianism because of some sort of belief in a natural rights or similar theory, or whether one discounted that kind of logic and was libertarian for pragmatic or utilitarian reasons. The debate seems to have been unnecessarily divisive. Can’t we all just get along? I don’t want to rehash the debate.

I was reading David Friedman, who is associated with the consequentialist school, and found myself in technical disagreement with one of his ideas. I think a libertarian society needs a little of something like natural rights theory. Permit me a chance to discuss it without reinvigorating the old schism.

In Machinery of Freedom, Friedman imagines a legal order that exists without any state to oversee it. He discusses how private security firms and private courts could produce law in a decentralized manner. These firms get customers and therefore profits from satisfactorily defending their customers’ rights. Disagreements over law and justice, then, are subject to cost considerations. If a firm doesn’t provide justice to a customer, they might lose business. If a firm has to battle with other firms, it would be costly. Therefore, severe disagreements over law and justice (such as whether capital punishment is appropriate) can be settled financially. One firm can make a payment to another, to get them to accept a mutually agreeable legal standard (and compensate them for a possible loss of business).

According to Friedman, market forces and cost considerations would determine legal outcomes and preferences. He insists that we cannot say a priori what sort of laws there ought to be, the market has to determine them. He trusts that whatever this outcome is, it would likely be more favorable than the outcomes produced by the state. You can see how he is identified as a consequentialist.

I don’t reject most of his reasoning, and would see past any of the regular straw men that might be raised against him. I don’t believe that “the rich” could exploit this system (any more than they do the current one). I can see how this system could be non-violent and quite stable. My one objection is that it doesn’t account for sociology.

A very basic study of sociology will teach you that people invent completely arbitrary social distinctions in order to expediently gain and hold advantageous social positions. A class of market actors could assert their preferences upon the legal order, and crowd out minorities, by establishing artificial distinguishing features that allow for systematic discrimination. Let me give context by way of example.

In Japan, in any car accident, one party is always held at least partially accountable. Even if the accident is entirely the fault of the other driver, you can be required to pay a percentage of the mutual damages. It is said that you are partially to blame by fact of being on the road that day. This standard exists because of the social preferences in Japanese society, which seek harmony and balk at assigning blame. This is an example of a real legal preference that is radically different from American legal norms concerning liability in traffic law.

In America, many people subscribe (knowingly or not) to a Rawlsian moral paradigm. They believe that all social outcomes are the product of a monolithic unitary social process. Any wealth is gained from the same process that denies wealth to others. They believe that it is entirely appropriate for wealth itself to be liable for the social maladies associated with whose who don’t possess wealth. They could prefer – on the open market of law – legal norms that require wealth transfer as a basic product of justice. This is not compatible with laws based on natural rights property theory. Friedman’s system could accommodate disagreement, but it would be natural for either side to seek a permanent domination of the legal market – if they can get away with it.

I agree that a theoretical market for law would probably lean libertarian. Because cost consideration and consumer preference affect legal outcomes, it’s unlikely that a philosophy like Rawlsianism could dominate the system. This is especially so to those educated in and subscribed to the theories of free market economists. A free economy is more effective at producing wealth, in theory, so a legal order which is sensitive to cost considerations would naturally favor a free economy.

As I said, my disagreement with Friedman is technical. Norms such as those favored by Japanese society or the American Rawlsians could be enforced by means of sociology. People would draw artificial lines (such as Hutus and Tutsis) in order to facilitate the decentralized differentiation between persons such that those who favor particular legal and political norms gain permanent influence over market outcomes. It’s a political phenomenon.

My particular argument is that humans will invent class distinctions where none exist in order to facilitate political power. This is a different phenomenon than saying that humans are tribal, or are incapable of getting along with ethnically or culturally different people. I agree that the market can adjust to human differences and accommodate them. The problem emerges when humans actively adapt their lines of differentiation to changes in the market.

Thus, in my view the only real way to preserve rights in society is with a priori cultural norms. If you are a consequentialist then you might believe that the free market is the most effective utilitarian system for producing wealth and socially beneficial outcomes. I’m saying that you can never have that extremely free market without cultural norms which have first integrated something like natural rights theory.

My particular argument is that society’s culture has to reject violence as a means to achieve preferred social and political outcomes. That includes defensive outcomes. I don’t mean self defense, but rather organized violence against a political adversary. (if the gestapo come to your home with the intent to kidnap then torture you, by all means shoot at them, but no violent revolutions)

If a state organizes systematic violence against a people in order to exploit them, then organized violence as resistance – a political act – is nothing more than the creation of substitute state. That’s in the best case scenario. Your violence might only serve to justify the state’s own brutality as a necessary means of restoring peace and order. On the other hand, a state’s power can be undermined through the exercise of non-violent power (black markets, alternative systems, withdrawing of consent).

In a free market of law, Friedman’s system, people have to culturally reject violence as a means of dispute resolution for the system to work. The use of arbitration has to stand as a deliberate substitute to conflict. This means that people have to reject the legitimacy of violence as a means to resolve disagreements over the nature of the law – they need to withdraw consent from people and organizations that do. Negotiations, payments, intrigue – sure, that’s part of how the law will get made and interpreted. Enforcing the law may require violence, which is justified and expected. But society would need an a priori cultural commitment to a rejection of political violence as the foundation of the system. In that sense, the system would have to integrate something like natural rights theory into its general norms.

“Because A) We reject the legitimacy of violence as a means of dispute resolution, therefore B) The law must at least be consistent with A)”

There’s your a prioi legal construct.