Monday, April 4, 2016

Punishment Clauses Cannot Be Enforced

Murray Rothbard with others in the Austrian School has worked out an extensive theory in anarchy of insurance companies and contractual law replacing our system of courts and juries, that is to say parties voluntarily agree to submit to arbitration, in essence, paid for by the disputants.  Judges work like carpenters, get paid when they get hired.  Contracts decide what the punishments for noncompliance will be.

I've never liked this line of thought when it gets into police protection, as it has competing police agencies vying for your business.  We've had that. It ends up in feudalism.  Before I state what I prefer,

English Law is common law so it should be given some weight in indicating how the real world would work sans hegemon.  Punishment for noncompliance cannot be enforced in English contracts.

 The true test was described as follows: “Whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.” Cavendish Square Holding BV v Makdessi [2015]. 

I prefer the Anabaptist's view on the social contract, nonperformance is punished in the measure you are shunned by society for your infraction.  No courts, no judges to replace community and relationships.  It works well for them.

It not only works well for them, we have a well developed system of international law called Lex Mercatoria, which is private law.  If summoned you can ignore, but you run the risk of chandlers refusing to provision your ship at the next port.

We have proven and viable systems of self-governance, and indeed we are largely self-governed, but we prefer by and large to be oppressed.  Anarchy works, but we do not want to work, defend ourselves, or think it through.  No faith. The hegemon knows this.

Feel free to forward this by email to three of your friends.


Anonymous said...

"Anarchy works"

A big part of the problem with people I think is understanding the term anarchy. Most people think anarchy = chaos, disorganization, law of the jungle/kill or be killed/might makes right- type stuff. Anarchy means in this context "no king" which people have a hard time comprehending how such a system could be put in place and maintained without eventually some usurper coming in and taking over.

Anonymous said...

Anarchy meaning "no king" in this context actually implies cooperation, trust, respect, mutually-beneificial relationships and collaboration among people, not chaos and disorganization.

John Wiley Spiers said...

Perzactly! Anarchists love government, just not the hegemon. Mediating institutions which are 100% voluntary and "authentic" meaning creative and generative. Organizations that unify, not necessarily divide as the hegemon must, to play one group against the other. Well said!