Burma and Chevron followup, part one
PlanetaryJim had the following comment on my recent post regarding the situation in Burma and the complicity of major corporations like Chevron and Total. It deserved a thoughtful response that I’ve just now gotten around to composing. Thanks to Jim for his patience.
Quoth Jim:
Brad proposes a very interesting approach to corporate-fascist-statist companies. As long as no one gets hurt physically, their assets would be fair game. Stealing from bullies and thugs would seem to be retaliatory force. Stealing from those who hire bullies and thugs would also seem to be retaliatory force.
However, there is clearly plenty of room for abuse in such a system. I think back to the olden days of letters of marque and reprisal. What Brad is proposing is basically reprisal.
Chevron and Total hire thugs to protect their pipeline in Burma. Said thugs become the government and rename the place Myanmar, bathing every day in gallons of blood shed by their victims. So, a letter of reprisal is issued which anyone may use in justifying theft of property from Chevron or Total.
Issued by whom? The common law tradition is a grand jury to investigate whether a crime has occurred. So, twelve to twenty-four persons would meet to evaluate such matters and determine whether there is evidence enough to indict.
I would argue that Condorcet’s jury theory applies. If we set the odds of each member of the grand jury making a correct choice at 50/50 and we increase the number of jurors, we are more likely to get a correct choice. One should be careful of individuals taking on this power, as the chances are they won’t be right even 50% of the time.
I wonder if the Common Economic Protocols might cover cases of this nature. Or be revised to do so.
My response…
Correct — as long as no one innocent gets aggressed against by whomever may (or may not) take it upon themselves to act on this line of reasoning. Strictly speaking, I’m only elaborating on what the non-aggression principle points to, as I see it.
There is indeed plenty of room for abuse in such an approach. I wouldn’t even call it a system, exactly, so much as the attempted application of a principle from which a system (of stateless law) might evolve. Such a system can not be designed from the top down, but must grow organically. The non-aggression principle is solely a guide for determining when the use of force is moral or immoral with regard to one criterion — whether it is an act of aggression or not. Clearly a course of action could be evaluated as moral behavior but be strategically unwise. Likewise, someone may have additional moral criteria that a course of action would have to satisfy in addition to not violating the non-aggression principle.
What’s really going on here…
The view I am advancing is that this sort of non-policy oriented (”anti-political”, as Konkin would have put it) libertarian analysis and debate is yet another example of the quintessentially anarchist process of building counter-institutions prefigurative of aspects of the stateless society we seek to build — i.e. “building the new society in the shell of the old”, as it is often put. Under a system of stateless law, one could expect legal scholars and practicing arbitrators to issue their own commentaries on the law and high profile cases. In the case of practicing arbitrators, it would be a way of building their credibility and perceived value in the sense of dispute resolution, by demonstrating the way they reason and how they apply the theories of justice they subscribe to.
That is essentially what I am doing in this instance. I am describing the basics of how I would rule if I were an arbitrator involved in an aspect of this controversy. While I certainly wouldn’t represent myself as a “legal scholar” as most people would conceive the term, the point is that as an anarchist I am an advocate of a system of stateless law and I feel compelled to write about its application. If it resembles anything, it bears a methodological resemblance to fatawa issued under Islamic law — published commentary on a body of law and its application, which itself becomes a part of that body of law to the extent the publisher is considered a credible expert. Please note that that I’m pointing out a methodological resemblance, rather than advocating actual sharia.
To the extent the nascent arbitration industry faces certain legal obstacles due to the State’s illegitimate monopoly of law, I seek both relevance to others and what shelter under existing law I can find by describing how I would vote on a jury under the present system as a close analogue. The probability that I personally might serve on such a jury would be extremely low in any event and it is now effectively zero because of my published views on the matter. But because my writings are made available via the internet for others to read, and any of them could conceivably end up on such a jury, such writing serves as both theoretical education and an aspect of agorist revolutionary praxis (i.e. the defense of the counter-economy).
Also, by describing how I would view courses of action after the fact, I’m also attempting to make clear that I am not necessarily advocating such a course of action. I’m not ordering or requesting anybody go do x, y or z. Everybody is responsible for their own actions, and I think Konkin made it pretty clear that counter-economics is fundamentally a risk management protocol for anarchist revolutionaries — the entrepreneurial trading of risk for profit, as Konkin put it. As a result of the subjective theory of value, the risk-takers and potential profit-gainers are themselves the best judges of whether a course of action makes sense or not. I’m saying if somebody did something loosely described by a, my reaction after the fact and in accordance with my rights under existing law as I understand it would be b.
Condorcet, juries and grand juries
I would argue, as you state, that Condorcet’s jury theorem applies — but perhaps not in the way that you suppose.
From Wikipedia:
Condorcet’s jury theorem is a political science theorem about the relative probability of a given group of individuals arriving at a correct decision. The theorem was first expressed by the Marquis de Condorcet.
It states that where the average chance of a member of a voting group making a correct decision is greater than fifty percent the chance of the group as a whole making the correct decision will increase with the addition of more members to the group.
As I see it, Condorcet’s jury theorem points to why the arbitration industry as a whole, including both initial hearers of cases as well as arbitrators before whom appeals are brought, would tend to produce good decisions. Call this the macro view. Under open competition and lack of state subsidy, the membership of the dispute resolution industry in aggregate will largely provide the dispute resolution people are willing to pay for. While plenty of arbitration enterprises will turn out “bad products”, they’ll go out of business as long as no forcible monopoly of law is successfuilly imposed (i.e a new state doesn’t emerge). If people generally favor justice, free market arbitration will mostly produce justice. Of course, if people don’t generally favor justice then we’re all screwed anyway, regardless of the outward form of the legal system.
Like most applications of ideas on probability, the jury theorem tends to break down with smaller sample sizes. Juries return squirrelly verdicts all of the time. An actual jury would be a micro example, compared to the macro example of the arbitration industry as a whole, which I outlined above. Naturally, arbitration enterprises should make use of whatever business models they find work best at fulfilling consumer demand. If the market (the people) wants juries, the market (people) will get juries. Or the reverse. Don’t let my advocacy of jury activism under statism confuse you in regard to the meta-discussion of stateless law.
With regard to grand juries and letters of marque, my concern is that you might be muddling anarchism with minarchist / Constitutionalist ideas. While it’s certainly possible that a mature system of stateless law might develop protocols and standards comparable to grand juries and letters of marque (or maybe not), that’s not what I’m talking about. The lack of a mature system of stateless law, with all of its best potential bells and whistles, is not the fault or responsibility of anarchist revolutionaries. Their job — our job — is to begin and nurture the iterative process that may eventually produce such a mature system of stateless law, and which will probably succeed in abolishing the state before then, in my opinion.
ADDENDUM: The reason I’m more convinced of the validity of Condorcet’s jury theorem in macro rather than in micro is that Condorcet’s theorem assumes people produce a good judgement more than fifty percent of the time and that ain’t necessarily so. I believe government elections show that to be the case. In the case of elections and jury trials under statism, rational apathy explains why people aren’t necessarily well informed enough to make competent decisions with regard to the matters at hand more than fifty percent of the time. A majority of professional arbitrators and legal scholars, with incompetents tending to be weeded out by market processes, would produce a greater than fifty percent good judgement rate — if anything can. What we advocates of polycentric law propose is nothing less than the closest possible approximation of perfect justice that is humanly achievable.
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Brad is certainly correct about the non-aggression principle and how it points to a method of responding to atrocious situations like that found in Burma/Myanmar.
In considering the development of a system of letters of marque and reprisal based on a common law grand jury, my intention was, similarly, to identify a path forward, building in the shell of the old systems. Using terms like letters of marque and reprisal and grand jury (referenced in the constitution for the united States of America and the Magna Carta, respectively), I am referring to ideas that have gone before without embracing the statist systems that promoted, for a time, and then ignored them.
In terms of organic growth, I would encourage you to read _The Law of the Somalis_ by Michael van Notten, which gives a good overview of the clan-based legal structures, most of which the Somalis kept for hundreds of years using their oral tradition. Their written language was only developed in 1971. Some of their institutions, such as council of elders, are much like old English institutions like the grand jury, and old Viking traditions like the “thing.” I think that there is some evidence that Celtic and Norse and Goth and African and even many Asian cultures prior to the rise of the Greek empire under Alexander held to fairly similar values and methods. These ideas are also described in the books of judges in the Hebrew bible, indicating that the ideas were common in that part of the world. Something about the tradition of kings has always been very creepy.
Speaking of creepy, the arbitration industry also faces certain obstacles due to the perceived caprice and arbitrariness of some of the rulings. For example, a friend of mine tells me of a ruling that he felt amounted to, in a sense, the arbitrator telling the plaintiff to run down the street naked. Personally, I have less difficulty with that idea than some of the rulings coming out of criminal courts - such as that judge who wanted to chemically castrate alleged sex offenders, including those who purchase pornography off the internet. But, some people are more gymnophobic than me.
The jury theorem itself says that with a smaller size jury, you get worse results. An actual jury is an example of the jury theorem, but you have to be careful of reasoning from a small sample set. So, if you are thinking of a few squirrely jury rulings, like the hot coffee at McDonald’s lady getting millions for spilling coffee on her lap, or half a dozen others you would name, that is anecdotal evidence, and a small sample set.
The jury theorem does depend on each juror having a greater than 50% chance of choosing correctly. Given that many juries only face the choice of guilty or not guilty, then random chance suggests that they would have 50/50 odds simply by guessing. And, keep in mind Condorcet dealt with the same general species of human beings (with slightly less nutrition and generally shorter lives). So, he was probably thinking about 50% plus a tenth of a percent or so.
If the market wants something, it very often is not able to express itself. If it does not want something, it never buys that thing. What you get as a consumer is what entrepreneurs and businesses generate as products. Just because I want to be able to travel at 90% of the speed of light, avoid all traffic, be invincible, invisible, and invulnerable, does not mean that any products meeting any of my desired criteria have been made available. To my knowledge, no market survey has ever posed questions in a way that I would be able to indicate my desires for these things. And these are really a small sample of my unfilled desires.
Talking about a mature system of stateless law, such as the observed behavior of the Somali clans, might be fun. But, yes, of course, I wasn’t talking about a mature system of market anarchy, either. And I was using examples from history to voice my agreement in general with your ideology, not to advocate anything as idiotic as a mere constitution to protect individual liberty and private property from government excess.
Our job, as I see it, is to take such steps as we are able, now, including to discuss and describe stateless institutions. I have no obligation to ignore generations of prior experience as I grasp it from the dim writings of history.
Bryan Caplan did an excellent job of demolishing the myth of the informed voter. But, elections are not really about voters, anyway. The vote counting is what matters. And, as we know, those who seek to control power don’t generally mind counting votes that weren’t cast. Nor do they seem to mind discarding votes that were cast.
Juries and grand juries are somewhat more direct, where the participants often vote after discussing the facts of the case. So, they may know, or suppose they know, who is voting which way. (I have difficulties with the whole concept of secret ballots, by the way. I dislike the shirking of responsibility that comes with anonymity in voting for brutal thugs to run the government or voting to punish some criminal in a jury box.)
I’m not confident of your assumption that educated and trained professionals in the market for arbitration services would provide a more effective jury than twenty or thirty randomly selected individual property owners. But, I am satisfied that the way to find out is by letting the people in the marketplace choose for themselves how they want to be judged.