Samson Corwell sent me some good questions on an-cap legal theory but I am too busy to answer. He said I could post them here. Feel free to respond in the comments…
An important thing to keep in my mind that a society’s legal system is an altogether separate matter from its form of government (i.e., stratocracy, anocracy, diarchy, monarchy, etc.). Legal systems can differ from each other in different respects, so elements which you or I may see as fundamental to a system of law might be missing from others. common law, civil law, and sharia are the three dominant legal system of the world. Common law places gives a good deal of weight to precedential case law decided by judges. Civil law’s key feature is codification. Sharia is, as you already know, religious in nature and is a bit more extensive than the other two, dealing also with hygiene/purification, diet, economics, and dress code. I’ve noticed that “polycentric law” seems to be a libertarian neologism, but I think that there a more mainstream name for that. A nicely organized chart summarizing the basic differences between the three systems can be found here. The table includes a column on “socialist law”, but there is debate in the legal community as to whether this constitutes a different system.
There are two types of cases in common law: criminal and civil. The distinction between the two is not one of “public versus private”, but rather one of burden of proof and the absence of the right against self-incrimination in a civil suit (i.e., the defendant can be made to testify). Although common law systems place great importance on precedent, basic systems of torts are still outlined by codified law. It is in this way that the libertarian solution to pollution is confused in that torts are not grounded in property rights themselves. I’m not sure on this point, but I think another difference is that double jeopardy does not attach in civil suits. The first principle of law is due process, and there are two kinds in the United States: substantive due process (a favorite doctrine of mine) and procedural due process.
Property law is one of the “core” legal subjects, but it’s a thousand times more complex than libertarians seem to think. In fact, property rights aren’t as fundamental/atomistic as many libertarians make it out to be. Some of its intracies include liens, adverse possession, conquest, and easements. A crucial distinction is made between real property (immovable) and personal property (movable). The difference between a property right in a plot of land and a property right in chattel is the difference between a property right in a location and a property right in a physical object. Property law outlines/creates the legal aspects of property itself, not crimes that may or may not involve property. There is even “quasi-property”. This is why the libertarian understanding of property and the rights associated with it is hopelessly muddled. The majority of law (i.e., contracts, crimes, laws of war, etc.) is to be found in other subjects. Another important thing to note is that “property” is what an entity has in something; it is not the thing itself. So, one can have a property right—an exclusive right to use—in intangible things (there’s no inconsistency or contradiction or whatever). Debt is one of these things.
As I’ve said, property law is only one legal subject and is limited in scope. There are many others like aviation law, space law, product liability, drunk driving, wills, child custody, personality rights, laws of war, maritime law, trusts, bankruptcy, equity, cyberlaw, and commercial law. They are irreducible and have distinct characterstics. As society develops so too does the law. Contract law in many nations, for example, now recognizes cryptographic digital signatures as legally binding. In this case the law needed to adapt to the rise of public-key cryptography. The development of radio required legislation to handle the matter of bands, broadcasts, and frequency jamming, too.
I hope what I’m writing here will help you to understand the nature of law and its disciplines. It cannot be looked at as a matter of markets/economics.
Mr. Murphy, how would you suggest that contracts could replace trusts, probate, wills, joint-stocks, and standard sales? Similarly, why should people adopt a libertarian scheme in favor of how mineral rights, water rights, liens, and easements work now? For example, the law in my state says that a person’s property line by the ocean extends to the high tide mark.
Another question, this time regarding the use of the term “intervention”. Why should things like intellectual property, prohibitions on child labor, or limited liability be considered anymore “interventionist” than property law or contracts? Surely contracts are nothing particularly special or more fundamental than the other things. An IBM or a Microsoft is not a network of agreements, but an organization. A joint-stock is property (of a sort) despite its intangibility. How do you deal with a body like the Catholic Church? How can a libertarian who is latched onto the concept of scarcity simultaneously advocate property in the electromagnetic spectrum? How do you deal with domain names and ICANN and internet governance (yes, it exists)? Or birth certificates?