Monosizean Shoes

What follows is an excerpt from: John Hasnas, The Myth of the Rule of Law, 1995 Wisconsin Law Review 199 (1995)

Are we condemned to a continual political struggle for control of the legal system? Well, yes; as long as the law remains a state monopoly, we are. But I would ask you to note that this is a conditional statement while you consider the following parable.

A long time ago in a galaxy far away, there existed a parallel Earth that contained a nation called Monosizea. Monosizea was remarkably similar to the present-day United States. It had the same level of technological development, the same social problems, and was governed by the same type of common law legal system. In fact, Monosizea had a federal constitution that was identical to that of the United States in all respects except one. However, that distinction was quite an odd one. For some reason lost to history, the Monosizean founding fathers had included a provision in the constitution that required all shoes manufactured or imported into Monosizea to be the same size. The particular size could be determined by Congress, but whatever size was selected represented the only size shoe permitted in the country.

As you may imagine, in Monosizea, shoe size was a serious political issue. Although there were a few radical fringe groups which argued for either extremely small or extremely large sizes, Monosizea was essentially a two-party system with most of the electorate divided between the Liberal Democratic party and the Conservative Republican party. The Liberal Democratic position on shoe size was that social justice demanded the legal size to be a large size such as a nine or ten. They presented the egalitarian argument that everyone should have equal access to shoes, and that this could only be achieved by legislating a large shoe size. After all, people with small feet could still use shoes that were too large (even if they did have to stuff some newspaper into them), but people with large feet would be completely disenfranchised if the legal size was a small one. Interestingly, the Liberal Democratic party contained a larger than average number of people who were tall. The Conservative Republican position on shoe size was that respect for family values and the traditional role of government required that the legal size be a small size such as a four or five. They presented the moralistic argument that society's obligation to the next generation and government's duty to protect the weak demanded that the legal size be set so that children could have adequate footwear. They contended that children needed reasonably well- fitting shoes while they were in their formative years and their feet were tender. Later, when they were adults and their feet were fully developed, they would be able to cope with the rigors of barefoot life. Interestingly, the Conservative Republican party contained a larger than average number of people who were short.

Every two years as congressional elections approached, and especially when this corresponded with a presidential election, the rhetoric over the shoe size issue heated up. The Liberal Democrats would accuse the Conservative Republicans of being under the control of the fundamentalist Christians and of intolerantly attempting to impose their religious values on society. The Conservative Republicans would accuse the Liberal Democrats of being misguided, bleeding-heart do-gooders who were either the dupes of the socialists or socialists themselves. However, after the elections, the shoe size legislation actually hammered out by the President and Congress always seemed to set the legal shoe size close to a seven, which was the average foot size in Monosizea. Further, this legislation always defined the size in broad terms so that it might encompass a size or two on either side, and authorized the manufacture of shoes made of extremely flexible materials that could stretch or contract as necessary. For this reason, most averaged-sized Monosizeans, who were predominantly politically moderate, had acceptable footwear.

This state of affairs seemed quite natural to everyone in Monosizea except a boy named Socrates. Socrates was a pensive, shy young man who, when not reading a book, was often lost in thought. His contemplative nature caused his parents to think of him as a dreamer, his schoolmates to think of him as a nerd, and everyone else to think of him as a bit odd. One day, after learning about the Monosizean Constitution in school and listening to his parents discuss the latest public opinion poll on the shoe size issue, Socrates approached his parents and said:

I have an idea. Why don't we amend the constitution to permit shoemakers to manufacture and sell more than one size shoe. Then everyone could have shoes that fit and we wouldn't have to argue about what the legal shoe size should be anymore.

Socrates' parents found his naive idealism amusing and were proud that their son was so imaginative. For this reason, they tried to show him that his idea was a silly one in a way that would not discourage him from future creative thinking. Thus, Socrates' father said:

That's a very interesting idea, son, but it's simply not practical. There's always been only one size shoe in Monosizea, so that's just the way things have to be. People are used to living this way, and you can't fight city hall. I'm afraid your idea is just too radical.

Although Socrates eventually dropped the subject with his parents, he was never satisfied with their response. During his teenage years, he became more interested in politics and decided to take his idea to the Liberal Democrats. He thought that because they believed all citizens were entitled to adequate footwear, they would surely see the value of his proposal. However, although they seemed to listen with interest and thanked him for his input, they were not impressed with his idea. As the leader of the local party explained:

Your idea is fine in theory, but it will never work in practice. If manufacturers could make whatever size shoes they wanted, consumers would be at the mercy of unscrupulous business people. Each manufacturer would set up his or her own scale of sizes and consumers would have no way of determining what their foot size truly was. In such a case, profit-hungry shoe sales people could easily trick the unwary consumer into buying the wrong size. Without the government setting the size, there would be no guarantee that any shoe was really the size it purported to be. We simply cannot abandon the public to the vicissitudes of an unregulated market in shoes.

To Socrates' protests that people didn't seem to be exploited in other clothing markets and that the shoes manufactured under the present system didn't really fit very well anyway, the party leader responded:

The shoe market is unique. Adequate shoes are absolutely essential to public welfare. Therefore, the ordinary laws of supply and demand cannot be relied upon. And even if we could somehow get around the practical problems, your idea is simply not politically feasible. To make any progress, we must focus on what can actually be accomplished in the current political climate. If we begin advocating radical constitutional changes, we'll be routed in the next election.

Disillusioned by this response, Socrates approached the Conservative Republicans with his idea, explaining that if shoes could be manufactured in any size, all children could be provided with the well-fitting shoes they needed. However, the Conservative Republicans were even less receptive than the Liberal Democrats had been. The leader of their local party responded quite contemptuously, saying:

Look, Monosizea is the greatest, freest country on the face of the planet, and it's respect for our traditional values that has made it that way. Our constitution is based on these values, and it has served us well for the past 200 years. Who are you to question the wisdom of the founding fathers? If you don't like it in this country, why don't you just leave?

Somewhat taken aback, Socrates explained that he respected the Monosizean Constitution as much as they did, but that did not mean it could not be improved. Even the founding fathers included a process by which it could be amended. However, this did nothing to ameliorate the party leader's disdain. He responded:

It's one thing to propose amending the constitution; it's another to undermine it entirely. Doing away with the shoe size provision would rend the very fabric of our society. If people could make whatever size shoes they wanted whenever they wanted, there would be no way to maintain order in the industry. What you're proposing is not liberty, it's license. Were we to adopt your proposal, we would be abandoning the rule of law itself. Can't you see that what you are advocating is not freedom, but anarchy?

After this experience, Socrates came to realize that there was no place for him in the political realm. As a result, he went off to college where he took up the study of philosophy. Eventually, he got a Ph.D., became a philosophy professor, and was never heard from again.

So, what is the point of this outlandish parable? I stated at the beginning of this section that as long as the law remains a state monopoly, there will always be a political struggle for its control. This sounds like a cynical conclusion because we naturally assume that the law is necessarily the province of the state. Just as the Monosizeans could not conceive of a world in which shoe size was not set by the government, we cannot conceive of one in which law is not provided exclusively by it. But what if we are wrong? What if, just as Monosizea could eliminate the politics of shoe size by allowing individuals to produce and buy whatever size shoes they pleased, we could eliminate the politics of law by allowing individuals to adopt whatever rules of behavior best fit their needs? What if law is not a unique product that must be supplied on a one-size-fits-all basis by the state, but one which could be adequately supplied by the ordinary play of market forces? What if we were to try Socrates' solution and end the monopoly of law?

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Micha, I don't think that

Micha,

I don't think that this argument makes much sense.

More consumer goods are a plus for a society and for individuals. More money can be good for individuals, but is neutral at best for society. More laws are generally not good for hardly anyone.

Regards, Don

I should add that the

I should add that the overall point of Hasnas's article is that so long as law remains as monopolistic as it is now, there will be a constant struggle for control of the legal system. Polycentric law reduces or eliminates that struggle.

Glen, And then there’s

Glen,

And then there’s also the fact that our standard arguments for the effectiveness of supply & demand in producing other goods and services generally assume a relatively stable background of property, contract, and tort law. But if supply & demand are to produce those very things, then you’ve got a chicken-or-the-egg problem; you can’t assume the existence of the very service in question.

Just to be clear, I’m not trying to make the case against competitive legal systems. I’m just pointing out this argument is very far from sufficient. David Friedman admits that the “markets work for everything else so they can work for law, too” argument fails, and he adduces a whole different set of arguments in favor of competitive legal systems.

But Friedman does indeed use the "markets work for everything else so they can work for law, too" argument. It's in addition to this type of argument that he also comes up with reasons why competitive legal systems might be stable. Since Hasnas wasn't trying to make the stability argument, I don't see any reason for him to include it.

One of the minarchist arguments that drives me crazy is the assumption of a relatively stable background of property, contract, and tort law, lack of bias, and equality of provision of legality services. Hasnas is arguing this very point - the law as it exists isn't unbiased nor equal nor fair nor independent of our vastly differing normative conceptions of justice. The "background" of law as it exists has its own downside. What we think of as an unbiased "rule of law" is no such thing. This by itself isn't a complete nor sufficient argument against monopolistic law, but minarchists ought to take it into consideration when making their arguments just as ancaps should focus on the stability argument.

Glen, I agree with you that

Glen, I agree with you that the focus of the argument should be on whether or not law differs in significant ways from other goods. I don't think it does, but that's a worthwhile argument to have.

Among them is the important fact that legal rules by their very nature affect groups of people, so one size has to fit all to some extent.

True, but the question then becomes how large does that "all" have to be. We don't have an international legal system (yet), and we seem to be doing okay without one. Minarchists tend to like federalism, where the focus of law is at the state and not the federal level. Anarchists want to go one step further and focus law at the community level, with customers of law subscribing to different legal codes depending on the context of the social interaction.

And then there’s also the fact that our standard arguments for the effectiveness of supply & demand in producing other goods and services generally assume a relatively stable background of property, contract, and tort law. But if supply & demand are to produce those very things, then you’ve got a chicken-or-the-egg problem; you can’t assume the existence of the very service in question.

Also true, but law did not develop in a vacuum, where one day the judges got together and just decided, "such and such is the common law." Law develops gradually over time, an incremental, evolutionary process, with the evolution of law influencing the evolution of markets and evolution of markets influencing the evolution of law. I see no reason to assume that one has to be there before the other; they both evolve interactively.

Roderick Long says basically the same thing in Responses to Ten Objections:

Another popular argument, also used often by the Randians, is that market exchanges presuppose a background of property law. You and I can’t be making exchanges of goods for services, or money for services, or whatever, unless there’s already a stable background of property law that ensures us the property titles that we have. And because the market, in order to function, presupposes existing background property law, therefore, that property law cannot itself be the product of the market. The property law must emerge – they must really think it must emerge out of an infallible robot or something – but I don’t know exactly what it emerges from, but somehow it can’t emerge from the market.

But their thinking this is sort of like: first, there’s this property law, and it’s all put in place, and no market transactions are happening – everyone is just waiting for the whole legal structure to be put in place. And then it’s in place – and now we can finally start trading back and forth. It certainly is true that you can’t have functioning markets without a functioning legal system; that’s true. But it’s not as though first the legal system is in place, and then on the last day they finally finish putting the legal system together – then people begin their trading. These things arise together. Legal institutions and economic trade arise together in one and the same place, at one and the same time. The legal system is not something independent of the activity it constrains. After all, a legal system again is not a robot or a god or something separate from us. The existence of a legal system consists in people obeying it. If everyone ignored the legal system, it would have no power at all. So it’s only because people generally go along with it that it survives. The legal system, too, depends on voluntary support.

So I agree with you that more needs to be said to make the argument that markets in law are not significantly different than markets in anything else. This parable is only intended to open people's minds to the possibility that law may not be that much different from other goods.

Micha: that is an awesome

Micha: that is an awesome article! Thank you for pointing me to it.

Glen W: read the full original article -- it's long but the snippet posted here works better in context.

I think my favorite bit is on the bizarre combination of "law and order", the nearly universal view that the only way to get more order is to request more or stronger law. I also liked the general demonstration that we are a nation of men, not laws. And in connection with Glen W's point, this bit:

Consider, for example, the situation of African-American communities in the segregated South or the immigrant communities in New York in the first quarter of the twentieth century. Because of prejudice, poverty and the language barrier, these groups were essentially cut off from the state legal system. And yet, rather than disintegrate into chaotic disorder, they were able to privately supply themselves with the rules of behavior and dispute-settlement procedures necessary to maintain peaceful, stable, and highly structured communities.

Micha, ...That may very well

Micha,

...That may very well be true, but who claimed otherwise? Neither Hasnas nor I argued for more laws - just competitive provision of laws.

So just what is being provided, who is competing to provide it, and how and why would I pay for it?

Regards, Don

Don, More laws are generally

Don,

More laws are generally not good for hardly anyone.

That may very well be true, but who claimed otherwise? Neither Hasnas nor I argued for more laws - just competitive provision of laws.

Hey Glenn, I have the

Hey Glenn, I have the highlighting problem too, when I use IE. In Mozilla, Firefox, and Konqueror, no problem. Apparently another IE issue. Try using Firefox instead.

Well, to reiterate, I wasn't

Well, to reiterate, I wasn't trying to make the full case against competitive legal systems. The arguments you guys (that is, Micha and Jonathan) make here in the comments are stronger than the one made by Hasnas in the original post. But a couple of quick responses:

Micha, you make it sound like it's just a question of how large or small the jurisdictions are. Minarchists want to devolve more power to the states, and anarchists just want to devolve a little further down the community level. But there's more to it than that. Anarchists advocate overlapping jurisdictions, so that people living in the very same geographical area could subscribe to different protection agencies and legal systems. Maybe that's possible -- I don't mean to start a full-blown minarch-vs-anarchy debate here -- but surely you recognize the distinction. (And yes, I realize that state and federal governments have overlapping jurisdictions, but that's not the same either. You're not choosing between state and federal government; you get both.)

As for Long's argument that markets didn't wait to develop until the common law was finished -- that's a good point. However, my point was not that markets cannot develop at all without a stable background of legal rules; after all, blackmarkets develop despite the active opposition of the law. Rather, it was that many of our arguments for the desirability of markets depend on that legal background. For instance, the notion that monopolistic pricing creates profits that attract competition, which in the long run pushes prices down and benefits consumers, depends on the notion that new entrants generally don't get firebombed. Note that blackmarkets display all kinds of undesirable characteristics, many of them directly attributable to (a) the drug trade's reliance on extralegal modes of contract enforcement, and (b) the willingness of people already operating outside the law to deploy violent forms of competition (like drive-by shootings) against their competitors.

BTW, I can't seem to highlight anything on your webpage without highlighting almost the whole page, which prevented me from cutting-and-pasting any quotations. What's up with that?

I would suggest, Don, that

I would suggest, Don, that in a legal free market you would have less laws. I don't think you can find any average citizen who thinks the amount of law and regulation in the USA is a good thing. Given a competitive legal market they would gravitate to the ones that were easy to understand and reasonably easy to follow.

That's an amusing story. As

That's an amusing story. As an argument for having a market in education, as opposed to the current education monopoly, it would work pretty well. But as an argument for competitive legal systems, it's exactly the kind of anarcho-capitalist argument that drives me crazy. It's just saying, "The market works well for all those other goods and services, so it could work for producing law as well." But the law differs in some really important ways from all those other goods and services. Among them is the important fact that legal rules by their very nature affect groups of people, so one size *has* to fit all to some extent. I can have my own size shoes without anyone else being affected; I can't have my own rules of evidence or definition of murder.

And then there's also the fact that our standard arguments for the effectiveness of supply & demand in producing other goods and services generally assume a relatively stable background of property, contract, and tort law. But if supply & demand are to produce those very things, then you've got a chicken-or-the-egg problem; you can't assume the existence of the very service in question.

Just to be clear, I'm not trying to make the case against competitive legal systems. I'm just pointing out this argument is very far from sufficient. David Friedman admits that the "markets work for everything else so they can work for law, too" argument fails, and he adduces a whole different set of arguments in favor of competitive legal systems.

Sadly, even my more


Sadly, even my more moderate libertarian brethren have told me that my hope of a high school education test for laws is never going to happen and I'm sure that Micha will hear much the same thing.

Don, Your questions may be

Don,

Your questions may be beyond the scope of the Hasnas article, but you may find some answers if you read the whole thing.

Short answer: law, law providers, however you and your legal provider agree to pay for it, and because if you don't, you will have no way to resolve legal disputes.

Bear in mind that you are

Bear in mind that you are "contracting" with a provider of law and law enforcement already. It is simply a monopoly and you have no choice in the matter in our system today. You pay for the services rendered with your taxes, but you have no option in the system and how it works. The idea, in liberal theory, is that a social contract exists between the monopolistic government and the citizen to regulate what services the government will provide. You are already in the situation of having rule of law provided by an external entity, you just have no choice in who the provider is.