Mike Huben Strikes Again!

[followup to If Mike Huben Didn't Exist, Would Libertarians Have to Invent Him?]

Given that Mike Huben is the proprietor of web site dedicated to critiquing libertarianism, one would think that he has either heard all of these arguments before, isn't capable of understanding them, or understands them but is feigning ignorance for a nefarious or perhaps some more benevolent but unknown reason. Since I prefer not to view people I disagree with as evil or stupid, at least not without good reason, I remain bewildered as to why Huben appears to have no clue what he is talking about when discussing libertarianism.

Writes Huben,

[I]f you want to use the dichotomy monopolistic versus competitive, then you have to say that jury trial is monopolistic the same way that elections are monopolistic or markets are monopolistic. After all, markets are imposed by governments instead of competing with alternative arrangements such as socialism or mixed models.

Jury trials and elections are monopolistic, in an important way that markets are not. Markets are simply the sum of voluntary transactions conducted by freely acting individuals. For that matter, socialism can be voluntary too, if people freely choose to aggregate their wealth and income unanimously. Neither of these need to be imposed by governments.

And of course there is competition in a trial: that is the nature of an adversarial system. Good competitors are rewarded on both sides: prosecution and defense.

Yes, some competition is better than none. Even more is better than some.

Nor is there a history of "better" methods of conviction for crimes in the sense of accuracy, though there has been an enormous amount of experimentation in the innumerable governments, national and local. Largely because there's no good way to measure the accuracy rate: no better "truth" to compare to.

We know that juries can be biased. We know that witnesses have a far higher error rate than forensics labs. We know that defense and prosecution attempt innumerable invalid arguments attempting to sway or mislead juries. We know that there are "hanging judges". We know that laws can be unjust and biased.

But there's no evidence that "let the market sort them out" will work any better than "kill them all and let god sort them out". Perhaps markets could fix this one source of evidence: but of course, there is the same moral hazard of corruption because of the large stakes. The difference is that hiding behind private rights, we're less likely to observe the corruption than in a public process.

Hmm...I wonder why it is that we lack sufficient data to determine when and how frequently the government makes mistakes. Could it have something to do with the fact that a competitive market is first and foremost a tool for generating human knowledge? That without this tool, under a system of central planning, we lack access to important kinds of information?

I'm reminded of the reason why anti-death penalty groups have such great difficulty finding a single, legally proven case of wrongful state execution. Could it have something to do with the fact that the government tends to dispose of evidence once the execution has taken place and in numerous other ways makes it difficult if not impossible to prove it has murdered an innocent person? Might this have anything to do with the fact that the state is *gasp* a monopoly, answerable to no higher authority but itself and the conservative lackies who prefer its very observable and frequent corruption to the scary thought of change to the foreign and lesser-known?

I mean, it's amazing we ever got democracy, trials, and the adversarial system in the first place; certainly whatever we had before that--however corruption infested it may have been--was still better known and therefore safer-feeling than progressive change, amirite?

To be fair to Huben, (though, again, as a supposed expert in criticizing libertarian thought, I expect him to know better), the inability to see outside the status-quo, government-mandated box is widespread. Gil, in the same comment thread, writes,

The only Libertarian solution (for those wanting a Libertarian solution) is the one I suggested - let property owners deal with trespassers and let two people in the street dispute and duke it out or they can find an arbitrator. The police, courts, judges, jails, juries, laws, etc., are all entities of a central government system.

Of course, as Gil himself should have noticed with his mention of an arbitrator, these are not all entities of a central government system. Courts, judges, juries, and laws are all entities of private arbitration systems as well. And police and prisons would be potential entitles of such non-central government legal systems were they not forcibly banned from competing with the government monopoly.

I supposed the best libertarians can do in situations like these where imagination is lacking is come up with sociological analogies. Bob Murphy gives us two John Hasnas-style good ones:

We're all arguing here about how much falsely convicted people should be paid, how many independent tests should be conducted, what the right tradeoff is between false positives and false negatives, etc. But to me this is like Cubans arguing about how many loaves of bread a kidney transplant should cost, etc.

Again, it's a bit tricky to even imagine how you could meaningfully have a "free market" in law enforcement, evidentiary procedures, etc., but if you could it would solve all of these problems. The ratio of false positives to false negatives would be a market outcome, just as the number of broken eggs to non-broken eggs in cartons in your grocery store.

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Assumptions

We're all arguing here about how much falsely convicted people should be paid, how many independent tests should be conducted, what the right tradeoff is between false positives and false negatives, etc. But to me this is like Cubans arguing about how many loaves of bread a kidney transplant should cost, etc.

Again, it's a bit tricky to even imagine how you could meaningfully have a "free market" in law enforcement, evidentiary procedures, etc., but if you could it would solve all of these problems. The ratio of false positives to false negatives would be a market outcome, just as the number of broken eggs to non-broken eggs in cartons in your grocery store.

First, let's remove some of the trickiness in imagining a free market in law enforcement. A somewhat useful distinction here is that of competition within institutions and between institutions. Normal competition between individuals under some set of laws I'll call market competition. Competition between different sets of laws I'll call meta-market competition (I know it's a bit awkward, suggest a better term if you like). The difficulty is supposed to be in imagining a free meta-market. Well, imagine a world in which there are a relatively small number of large sovereign corporations competing in the meta-market. There is a bit of competition, but for a variety of reasons, these corporations are largely monopolistic. This is essentially the current reality as we know it.

Imagining a federalist world isn't very hard either, and the level of competition goes up. In this world, sovereign corporations are many, small, and varied. People move freely between corporate regions with relative ease and base their decisions to move and stay at least in part on the legal regime in each respective area. If people don't like the false-positive conviction rate under any legal regime, they simply move. It isn't complete free as corporations still have geographic monopolies, but the geography is less relevant.

The real difficulty for most people is imagining the extreme version of meta-market competition where geography has nothing to do with law (a completely free meta-market?). Imagining it shouldn't really be a problem, however. It's just like the federalist world, except geography doesn't matter. You make claims to your personal law provider rather than city hall. It may be difficult because the market/meta-market distinction becomes very blurred. Yet even if someone can't picture this, the federalist world is easily imaginable and one in which competition, to a large degree, determines many of the legal rules which are being argued over.

Secondly, what we see here is a battle of hidden assumptions. One is widely held by libertarians (though probably not all), and the other is widely held by non-libertarians. The libertarian assumption, held by Bob Murphy, is that there is no particularly just level of compensation or ratio of false positives to false negatives, etc. So whatever the meta-market gives us is fine, within some constraints (e.g. the utilitarian has the utilitarian constraint, or goal rather; but the Neolockean has the voluntary and pedigree constraints). The non-libertarian assumption is that there is a certain just way to do things and the meta-market won't get us there. Note that there is a third possible assumption- that there is a just system, but the meta-market will get us there. I don't think this position is represented in Micha's post, but it is a potential position at least worthy of consideration. Also note that actual libertarians could land in any one of the three camps, it is only a general tendency for them to take Bob Murphy's position. Imagine a Neolockean who thinks there is a just level of compensation, for example.

Part of the reason people can't see out of the "government mandated box" is that they are holding onto an assumption about what is just which is incompatible with anything other than government mandate. The world of competing legal regimes is irrelevant to them because it won't give them justice, so they don't care to imagine it. Libertarians may do well to make their assumptions explicit and argue for them instead of keeping them hidden and arguing past everyone else in their little box with analogies illustrating how the meta-market would work.

Jury trials and elections

Jury trials and elections are monopolistic, in an important way that markets are not. Markets are simply the sum of voluntary transactions conducted by freely acting individuals.

Micha, you don't seem aware of the assumptions implicit in your statement. Why is it that you HAVE something to transact about? Because there is ONE, monopoly, legal system of property and ownership.

It's easy to make things look like individual actions if you ignore all of society.

I wonder why it is that we lack sufficient data to determine when and how frequently the government makes mistakes. Could it have something to do with the fact that a competitive market is first and foremost a tool for generating human knowledge?

That's a non-sequitur. And of course, government generates knowledge as well: start with the census, Bureau of Statistics, research institutions, etc. But maybe I should apply your method of argument, and point out that you don't generate knowledge because you're not a market. :-)

I'm reminded of the reason why anti-death penalty groups have such great difficulty finding a single, legally proven case of wrongful state execution. Could it have something to do with the fact that the government tends to dispose of evidence once the execution has taken place and in numerous other ways makes it difficult if not impossible to prove it has murdered an innocent person? Might this have anything to do with the fact that the state is *gasp* a monopoly

Let's count all the stupid forms of argument here. Argument by sneer, argument from ignorance, argument by conspiracy theory, claim of a reason without presentation of one: why the list is long.

People who are so certain of themselves tend to make bad arguments.

Your dog owns your house

Micha, you don't seem aware of the assumptions implicit in your statement. Why is it that you HAVE something to transact about? Because there is ONE, monopoly, legal system of property and ownership.

No, Mike, unless you believe that your dog owns your house. I have something to transact about because I either produced, found unclaimed, received as a gift, or traded for my part in the transaction. The thing is not government's, nor society's, nor my dog's, merely because they came after the fact and claimed they helped "contribute" to producing it. I have the stronger claim.

Come on, Mike. You've been arguing with David Friedman for years. Surely you've tried to make this same argument with him and surely he's given you an answer quite similar to the one I just gave you. So why bother pretending you haven't heard it before?

It's easy to make things look like individual actions if you ignore all of society.

The government is not synonymous with society, and neither society nor the government has a stronger claim to the property I own than I do.

And of course, government generates knowledge as well: start with the census, Bureau of Statistics, research institutions, etc.

Yes, the census is precisely the sort of knowledge Hayek had in mind when he wrote that linked essay, precisely the sort of knowledge you need to run a business - nay, an economy with. I give you C for reading comprehension.

People who are so certain of themselves tend to make bad arguments.

I know exactly what you mean.

And for what it's worth, argument from incredulous sneer is one of my favorite kinds of arguments.