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Order Without Law

As a committed, card-carrying Libertarian Taoist-Buddhist Anarchist, I believe in both the practical possibility and definite desirability of “Order Without Law.”

Robert Ellickson’s book of the same name was an eye opener for me, and I based my LL.M. thesis on his ideas regarding spontaneous order without law, which drew me into anarchist-libertarian thought.  Which is where I live now, depressed, apocalyptic about the future, knowing how govt oppresses and destroys, confident in their ability to destroy our futures. 

But as a practical man, I understand that the Mafia will always exist in any society.  I respect Hans Hermann-Hoppe’s analysis of various forms of Mafia-Government, and agree that monarchical states produce fewer “bads” than democracies, where the two wings of the same bird of prey simply take turns in oppressing us.

Accordingly, I would much prefer to live in Bhutan, a monarchical Buddhist nation-state that is endowed with the best government in the world right now, and has the only truly sustainable environmental policies of any govt, but practical circumstances and the limitations of immigration laws condemn me to live in a quasi-fascist hell-hole “democracy” run by criminal embezzling international bankers-Freemasons-Illuminati-Reptilians called the land of Oz.

Given this reality, I try to nudge people around me (and the criminal govt) towards sustainable sanity.  But given I cannot even get my neighbours to throw rubbish in the right garbage can, I despair at my pitiful efforts.  As a failure, I often contemplate the only logical “out” for anyone seeing their society kill itself (suicide) but continue to live just to see whether I’m proven wrong.  I doubt it, but hope springs eternal.

On this basis, I accept the oppression, the stupidity, the lies, the brutality, the corruption, the venality, the pompousness of coercive govt.  However, I would like to educate govt on how to kill us more slowly.  There’s no point engaging in the business of oppressing us so successfully that they kill us within a few decades, or a few years.  Give us at least a century before completely cannibalising us.  Sadly, given the current direction of Western Fabian-controlled criminal govts, there is the real prospect in the UK, the US and Australia that we will die in a few short years from a second GFC. 

Sad.

Nevertheless, in the hope that my words cause a small ripple, let me share an insight with you:  The most elegant, the most profound, the most brilliant piece of market regulation ever devised in the late 20th century was “accidently” passed by the Australian govt in 1974.  It had an effect far beyond the drafter’s wildest expectations, has been the most successful piece of market-regulation ever introduced in Australia, is easy to understand by the layman, is intuitive and gave a property right in truth.

That piece of legislation is a simple one line section in the Trade Practices Act (Cth) 1974.  Section 52 of the TPA states:

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The inadvertent genius of this piece of legislation is that it was easy to understand and could be enforced by market participants (not only govt bureaucrats).  Market participants suddenly were given a property right in truth!  And as Murray Rothbard has forcefully argued, the market works best when people are given standing to sue on a property right.

This little unassuming section has revolutionised commercial litigation in Australia.  It is the most-used, most-cited section in commercial law pleadings and cases.  By creating a property right in truth it allowed self-regulation by market participants. 

It was truly a work of genius – subtle, using the power of property rights and the market, aligning the community’s interest with the interest of individual market participants who were given standing to sue for commercial lies.

It has killed gross misrepresentations and overt lying in real estate, in banking, in insurance, in a whole host of industries that are subject to “sharp commercial” practice in virtually every other Western jurisdiction.  No other major Western country has such a powerful legislative protection from commercial liars.  The US has no such protection, and therefore lying is rife in commerce.  No one is given a property right in truth in the US, and therefore it is an undervalued commodity.

Using the lessons learnt from this piece of legislative genius, I have a suggestion as an alternative to an ETS.  How about we introduce this piece of legislation instead:

A person shall not engage in polluting activity that is likely to cause significant and sustained harm or damage to the property or health or livelihood of any other person. 

“Person” in this context is intended to include “corporation” and “government agency”.

Any person has standing to sue on the above section and any parent has standing to sue on the basis of the above section on behalf of a born or in utero child.

If two entities are polluting each other, then (obviously) the costs can be “netted out” and offset against each other, with the “greater” polluter compensating the other party for the net costs of the polluting activity.

“Livelihood” includes the right to natural habitat or access to fishing areas, hunting areas etc for indigenous peoples and sustainable self-sufficient farmers.

This would provide a property right in clean air, clean water – a property right in not being “injured” by pollution.  It would be enforced by market participants.  It would be for the courts to determine cause and effect – not a govt bureaucrat.  It would allow evolution in jurisprudence.  It would be self-regulating.  It would be cheaper (far cheaper) than an ETS.

It would provide for order with minimal law.

What about it?

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