What Laws Do

Linoge over at Walls of the City has an excellent post describing what laws actually do:

Laws, in general, do two things*. First, they define what a government does not like, whether it is killing another person (after all, no government likes having their population of taxpayers reduced), not paying your taxes (see previous comment), or consuming X substance (despite Y substance yielding much the same affect on you, but still being legal). Second, laws give governments the ability to punish people for doing things they do not like (or, alternatively, in the case of Obamacare, not doing something the government does like).

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And before someone trots out the straw man that my argument boils down to, “Well, if there is no point in X law because criminals will break it, then why have laws at all?” allow me to re-introduce you to the notions of malum prohibitum and malum in se. “Safe storage”, “universal background checks”, arbitrary magazine capacity limitations, and all the rest of those are malum prohibitum laws – having a magazine loaded with 30 rounds in New York state harms no one, but it is illegal there because the government has defined it as being illegal. On the other hand, laws prohibiting, and punishing, murder are malum in se laws – these are crimes deserving of punishment because you have detrimentally harmed someone against their will.

The latter is generally necessary for society to exist and get along within itself (though Christopher Burg may disagree).

It may surprise many people to hear that I agree with Linoge’s post. Even us anarchists believe laws are necessary to lay down ground rules for human interaction. Where we disagree is how those laws are created and enforced. As I explained in my post on laws under anarchism, even stateless societies have laws. The difference from societies with states is that laws in stateless societies are almost exclusively malum in se.

Instead of giving some suit-glad guys in marble buildings a monopoly on creating laws, stateless societies put the burden of creating laws on the people themselves. In order for a law to arise in a stateless society enough members must be willing to invest the resources necessary to enforce it. These resources include time, money, and the risk of bodily harm or death. Because of this the laws in a stateless society tend to involve demonstrable harm and enforcement techniques tend to be efficient (in regards to resource usage).

Let’s look at prohibitions for a moment. Consider the rate at which the United States is traveling down the road to complete cigarette prohibition. Many people disapprove of cigarette smoking and have worked to pass laws prohibiting it in public areas. People who oppose cigarette smoking fight for such laws because they are not directly responsible for enforcing them. If we ever reach a point where cigarette smoking is prohibited it will be treated the same as other prohibitions. Consequences will involved costume-clad badge-wearing men kicking down your door in the middle of the night, kidnapping you, and throwing you in a cage (and probably shooting your dog). In a stateless society individuals wanting to prohibit cigarette smoking would have to do the enforcement themselves. Can you imagine the consequences of an individual kicking down a smoker’s door and attempting to kidnap him? Without the general legal barriers to self-defense that societies with states have on the books, the risk of such an act would be very high. The prohibitionist would likely be shot by the home owner or possibly shot by the smoker’s neighbors, who may see the act of enforcing a prohibition as an act of assault.

Meanwhile people have a general disdain for theft, assault, and murder. Statists often ask what motivation individuals in a stateless society would have to defend their fellows. In societies with states we see a tendency for individuals to call the cops when witnessing an act of aggression. The reasons for this attitude are many but it is strongly influenced by the potential risks of intervening (laws that acts as barriers to self-defense) and a general apathy towards the well-being of our fellow individuals (since we’ve grown accustomed to leaving the state to provide for the general welfare). These barriers don’t exist in a stateless society. In fact the opposite is true. When individuals are expected to shoulder the burden of law enforcement the lack of action can lead to social ostracism. If you’re unwilling to put yourself on the line by defending your neighbors then your neighbors are unlikely to put themselves on the line to defend you.

Laws will always exist but the way they’re created is important. Decrees from rulers tend to focus heavily on malum prohibitum whereas laws created by spontaneous order tend to focus heavily on malum in se. The latter are necessary for social interactions because such interactions are impossible if individuals are constantly under the threat of violence. The former is dangerous because they put everybody under the threat of nonretaliatory violence.