Lots of interesting stuff. Our posts are getting longer and more complex. This is me breaking down, and strenuously resisting interacting with all the interesting bits and just keeping what are most interesting to me. If I missed one that you are more interested in, please bring it back up and we'll drop the others.
I find more or less everything in this thread interesting, so it's all fair game. If I don't address something, please poke me and I'll get to it.
Contracts exist because businesses want to regulate their commercial relationships. Laws serve a similar function. A business owner generally wants to know its responsibilities and obligations before making an investment; I doubt many would want to determine what they can and cannot do through social osmosis. And few towns will want to wait for a factory to start dumping waste before taking action.
They're asking for the moon. There are some things you can know in advance, which you put in the contract. Then life blindsides you. Few towns may want to wait for a factory to start dumping waste but every last one of them did -- partly because the dumping practice preceded (by centuries or millennia) the awareness of the toxicity.
A good contract is proactive, and any good drafting attorney will provide for contingencies and for unexpected events, or else make sure that there are default rules in place which all parties to the contract find acceptable. Similarly, a good law is proactive and provides for rules
before things get out of hand. While not all contingencies can be predicted, it's possible to provide for default rules for situations which
can be foreseen, which usually are the ones most likely to occur anyways. We might not be able to anticipate all future pollutants, but we can make laws for those we know of, create defaults for future ones, and then make a system for amending the entire law if necessary. Just because we cannot anticipate everything does not mean that we shouldn't think of the future at all. A good system is sufficiently flexible that it can adapt to new circumstances.
Not talking about pre-industrial societies, mind. The toxicity of industrial byproducts was well-known in the nineteenth century. The factory operators simply didn't care, and at the time it was considered an acceptable cost of industrialization.
Laws generally do not create conflict
Yes, they do -- they don't create violent conflict, but they do open up brand new avenues for disagreement. Here, I'll show you:
But a law can solve a boundary dispute without need for violence, or even the expense of arbitration/litigation.
It will also create boundary disputes by creating new boundaries.
A law is a codified rule arrived at through discussion and compromise, and by being codified allows for predictability. Subsequent disagreements which are resolved through litigation/arbitration/whatever increase predictability because individuals can look back on cases similar to theirs and see how their own case will turn out. Obviously any rule is subject to interpretation, but that doesn't create conflict in any meaningful sense any more than would an unwritten rule. To go back to boundary disputes, people will argue over ownership regardless of whether or not the law of adverse possession exists, but that law allows individuals to determine what their rights are
without resorting to violence, which is more than I can say for a law that says simply "do no harm".
modern industrial development creates new problems
No, it does not. There is only one problem, ever: do no harm.
What you want laws for is to spell out, a priori, what that means. Got kids? Tell a kid, "Don't touch Mommy's vase." So he goes and gets a stick, and touches the vase with the stick. He's not in violation of your law, now, is he? "Don't touch it with anything." So maybe he blows air at it, to see if air "counts". How about jumping up and down so that the floor vibrates, and the table, and the vase? See what I mean by the existence of a law opening up disagreements? You can send the kid to his room (because he knew damned good and well what you wanted), but you can't send an entire society to its collective room -- and we all do this, not just fractious three-year-olds. How about Mr. Silverstein of World Trade Center fame, with his towers insured against acts of terrorism, arguing that the two plane strikes were two separate events so he should be paid double, and the insurance company arguing that it was all one event? No matter how detailed your contract, you can always always always find some new hair to split.
I say that the more details you have, the more hairs there are to split. Laws will therefore multiply problems just by defining more and more of them, smaller and smaller.
One law: do no harm. Then if I think you have harmed or wronged me, I tell our community that I feel injured or endangered or whatever it is. I make my case to them, you make yours, and either they tell me I'm being oversensitive, or they tell you you're being a jerk, or they tell us that we're both idiots, or whatever it is. It's what we do in court anyway, except that we have to pay lawyers through the nose for the use of the specialized language of The Law.
If there were more specific laws in place, you could harm me by doing the "I didn't touch the vase, the stick did" trick and maybe no lawyer would take my case because they could see you weren't technically in violation.
Or maybe they would, seeing an opportunity to soak us both.
The things people could do to harm one another increased exponentially with industrialization, as did the scale of the harm. Preindustrial societies have to worry mostly about intentional harms, or at worst relatively minor negligent acts that cause harm; any decent survey of old Anglo-American law shows as much. In comparison, an industrial society has to worry about unintentional harm that can level an entire city. Transport of toxic chemicals, for example, can result in very severe harm on an enormous scale even when the transporter exercises utmost care. Ditto for nuclear energy plants. In such cases, a government-made law can reduce uncertainty by providing rules, such as immunity for chemical transporters who exercise due diligence, and regulation for how such things should be transported to minimize risk to people. A court can do the same thing after the fact, of course, but anticipatory legislation is more useful because it reduces uncertainty and encourages development.
More generally, it's a matter of abstraction. "Harm" is a deceptively simple concept that in practice is so ambiguous as to be meaningless. It does form the basis for most laws in one way or another, though. Anglo-American tort law does more or less what you suggest should be done in an ideal society -- two parties are brought before a neutral person or panel, present their arguments, and a decision is rendered which both parties are required to accept. However, such a system requires predictability, because a system of dispute resolution which is perceived as arbitrary or biased will not be able to maintain legitimacy; a system whose results are not accepted will not survive for long without assistance. Which means the "community" will still have to follow precedent and at least try and appear objective, same as any modern court. In the long run the system will be no different than the modern judicial system.
A law can be drafted very broadly, of course, same as any rule. That usually is not a good thing. Good laws, like good rules, should be written with a reasonable degree of specificity. For example, a U.S. state whose name escapes my mind at one point enacted a child porn law written so broadly that it arguably criminalized possession of
written descriptions of
fictional minors engaging in sexual activities. The state attorney general of course argued that his office would never try and prosecute anyone under such a construction. Shortly after the law was passed, the state predictably prosecuted a man because of his dream journal under just such a law.
Same with the vase example. A rule made absurdly specific will not cover all eventualities, so it has to be reasonably broad. "Do not harm" is however even more subject varying interpretations than "do no touch." Yet the rule still has to be specific enough that it doesn't lead to unwanted results. Ditto for contracts. Silverstein and the insurance company might argue over the exact compensation he is entitled to, but the contract still served its purpose of protecting his property. Just because it did not predict all possible outcomes does not mean that a contract is a failure.
Just because we cannot predict everything, does not mean that we should not try and anticipate for eventualities. No method of arranging human relations is going to be perfect. But that doesn't mean we should give up. Yet the system you've suggested, of individuals presenting their case before a presumably impartial body, isn't different from our current system, so not sure we're really in disagreement. I do think such a system would essentially be a copy of our current judicial system, with precedents and odd points of law and considerations of social policy, though.
Or maybe they would avoid the political hot potato of contradictory laws: for example, the 5th Amendment says you may not be compelled to provide evidence against yourself. But the IRS demands such information every year. But you have the right not to do that. But the IRS will take your house if you don't. . . .
Not going to go into Fifth Amendment interpretation. I am not as familiar with the subject as I'd like. According to Wikipedia, an individual can be required to provide non-incriminating information such as his annual income, but might not have to provide incriminating information such as the source of that income. That more or less matches what I know about income tax law, since the IRC requires individuals to report
all "income" however obtained, but not necessarily its sources.
It shows how reasonable minds can differ in interpreting even something as seemingly-simple as "[N]or shall [any person] be compelled in any criminal case to be a witness against himself."
Here -- IRS vs Constitution -- we have the State itself in violation (one way or another). But the State controls the courts, and the laws, and the enforcers. Who or what enforces the law upon the enforcers of the law?
Depends on the state. In New York an individual can bring an Article 78 proceeding, and probably has other remedies I am sadly not aware of. At the federal level, individuals can sue agents of the state under a number of theories, though their success may vary. In almost all cases there are also administrative procedures to address violations by agents of the state.
In general, a lot depends on the state and its controlling government. Well-constructed state institutions are designed to be limited in power, have mechanisms for limiting the potential for abuse, and allow private citizens to recover damages and punish violations. Separate enforcement agencies, separation of interests and of purpose, and other tools can be used to good effect. I usually speak of the state apparatus as a single whole, but the state is made up of multiple parts. In well-constructed states there is some tension between those parts, which can be harnessed to reduce potential for violations.
Strong civil and economic societies also help restrain the state, especially under a democratic government, because they provide an additional layer of powerful oversight. Citizen-watchdog groups are a prime example.
Please when considering crimes, do not omit the archogenic ones -- the ones committed by the law enforcement institution itself. >Here< is a bit of a study claiming that, in the 20thc, you were 6 times as likely to be killed by your own government than in a war. Even if I were less in conflict with my neighbor thanks to laws, now I have a new neighbor, the State, with which I can be in conflict, a neighbor created by law, and one which can kill me with impunity.
A state is neither inherently benign, not inherently evil. It's a tool to be used by those who control it. Some of the links on that site are dead, but it's an interesting resource, and thanks for pointing it out. Am roughly familiar with most of what the site author talks about. I disagree with some of the author's methodology, at least skimming the site, because he seems to lump things together inappropriately to arrive at a large number purely for shock value. A lot of people were killed during the Great Leap Forward from famine, but those deaths should not be lumped together with deaths from the Thirty Years' War, for example.
The simple answer would be that individuals can also kill a lot of people, and private organizations can be very efficient at doing so. Pogroms in eastern Europe and the Balkans were often carried out with little state support -- the state would merely look the other way and let individuals do what they would. The African slave trade is another example, and one where the state actually moved in to ban the practice despite opposition from individuals.
The best answer I can provide in this space is a continuation of my response above to your question of who enforces laws against the state. The apparatus of the state is controlled by a government. The best government is built in such a way that mass murder against its own citizens is made virtually impossible. I say "virtually" because with human beings anything is theoretically possible. True democracy helps; separation of powers horizontally between branches and institutions and vertically between federal, state and municipal levels helps even more. Enumeration of powers, limitation of authority, and other tools can be used to restrict the government's ability to abuse the power of the state. The electoral system's interaction with the social, economic, political, ethnic, geographic and religious divisions within a country is very important, and a good electoral system must account for the composition of the electorate and its various interests.
The framers of the U.S. Constitution were very much concerned with how to make an effective government that would neither become a vehicle for mob rule, nor a dictatorship that would abuse its powers. They mostly succeeded. A state isn't doomed to perpetuate crimes against its own citizens.
It is also incorrect to infer that states do not protect individuals from violence merely because in the aggregate more have died from the actions of the state than from actions of individuals. There are numerous examples of "stateless" societies where the risk of violent death is quite high.
Lawyers arguing over a point of labor law is a better outcome, at least to me, than workers burning down company offices.
You see these as the only two options? It's either laws and police and chiefs-of-police, or wanton destruction? Huh.
Sort of. Without a means of arriving at a peaceful resolution to their conflict, the only remaining alternative to the parties involved is force. If an arbitrator reaches a decision which becomes precedent, and can enforce his decision against an individual, he is not far removed from being an agent of a real-life government, even if enforcement is merely a writ "allowing" the winner of a dispute to use force. I prefer a system where disputes can be handled peacefully.
I'd be genuinely interested in what you imagine a stateless society to be like.
Depends on the core assumptions. A functioning anarcho-capitalist society can exist under certain circumstances.
Does not answer the question. I was having trouble with your distinction between human society and government. I want you to either make an equation, society=government, or to tell me what the difference is. I'm not concerned with the circumstances that you think could give rise to an anarchy, nor to your estimate of its likelihood of arising/existing/surviving. I just want to know how you would know one if you saw one. You ride into town and -- ? What do you find?
If you have to drop anything, I'd rather it not be this one. This is my big interest just now.
A society in that sentence is a group of people who interact with one another on a fairly regular basis. That's about as narrow a definition as I can come up with. A government is, broadly, a means of achieving a socially-acceptable solution to problems; it's also the control mechanism for the apparatus of the state.
As far as I understand it, the defining characteristic of an anarchist society is the absence of a state apparatus and the government which would control it. The
results of such a state of affairs will vary depending on assumptions. Not sure if that's the answer you're looking for. I won't go into what I think such a society could look like, because that doesn't seem to be what you're looking for, and because it'd be an entirely subjective answer dependent on too many variables.
