Law is What the Free Market Says it is

Revisiting a recent post, Gene Callahan and Libertarian Obligations, I want to re-summarize my rebuttal regarding Callahan’s “obligations.” What Callahan was really saying is that where there is some mechanism of voice(i.e., voting), there is an impersonal duty to obey the State and that you are obligated to use legal means to correct injustices, perceived or otherwise. My rejoinder to this is simple: Positive Law is what the Political Class says it is. I don’t need to make a long, conceptual case starting from Hobbes and then progressing to the class analysis of the radical French liberals to justify this. I can make a simple empirical observation. Under the Byzantine, vague complex array of laws in the federal criminal and regulatory code, we are all guilty of being a felon, which is why 95% of federal defendants end up plea bargaining. All it takes is to become the object of an aggressive prosecutor, noting that if you attempt to defend yourself, the prosecutorial class has wide latitude to charge you with “obstruction of justice,” which is “crime” that needs no underlying crime to be actually charged with and prosecuted for.

There is no legal means, no means of voice, short of abolishing the political class, to change this. Therefore I reject “Callahan’s Obligation,” and note that what this obligation really entails is that we resign ourselves to being criminal subjects of the State.

I bring this up again because I’ve noticed that there has been additional discussion of Callahan’s claims since my original post, in particular noting the discussion at ar Roderick Long’s Blog. In addition, Gary Chartier shot me a comment to check out his detailed article regarding the legitimate use of force in a Stateless Society. But an important point to keep in mind from my brief reading of Callahan’s blog is that his principle beef seems to be with “ideological anarchism” itself, and that his principle strategy(to support his “obligation”) as a former libertarian seems to be baiting libertarians into internal squabbling over the positive case for libertarianism. He knows the species. However, from my undergraduate days as a mathematics major, the case/proof against B(“libertarian obligations”) is not a proof for A(“obligations to the State”). Ignore making the positive case for “B,” and go after negating “A,” as I have done, to make the case against Callahan.

By the same token, however, the case against “A” doesn’t constitute “proof” for “B,” although I do see great propaganda value in attacking “A,” particularly the obligations attached to the National Security State, in promoting a libertarian alternative. But it should be noted that I am a Hayekian, and not a devotee of the praxeological method, which means I think more in terms of game theory and coordination problems rather than a “deduced praxis” of human action. But as a radical libertarian, that is, an anarchist, I am a critic of Hayek’s gymnastics with respect to common law. I take the Hayekian position to it’s logical conclusion, that is, Market law. But because of the historical problems associated with land, and that land is the one thing that can be susceptible to an obvious market failure, I take a Georgist position on land.

The typical critique against “Market Law” is a cultural one, that culture will overpower markets. But that’s not actually scientifically correct. A recent paper in “Science,” that I discussed previously at Freedom Democrats, is one of the more comprehensive anthropological studies to demonstrate that markets universalize values across cultures.

Liberalism rooted in market law instead of politics seems far fetched and absurd to most today, but certainly no more absurd than the idea of liberalism rooted in “constitutional law” would have seemed to those at the height of European feudalism. Unfortunately for us, these institutional shifts don’t operate on a timeline that might be hospitable to our lifespans. Nonetheless, the radical libertarian critique against the institution of the state churns on; it’s not dying out. It is the replacement of the political economy with the free market, the Catallaxy; from positive law being what the political class says it is to one being what the free market says it is…


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