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Authoritarian law engenders conflict, discourages voluntary interaction

From chapter 3 of Bruce Benson’s The Enterprise of Law, “The Rise of Authoritarian Law”:

When government becomes involved in the enterprise of law, both the rules of conduct and the institutions for enforcement are likely to change. The primary functions of governments are to act as a mechanism to take wealth from some and transfer it to others, and to discriminate among groups on the basis of their relative power in order to determine who gains and who loses. …

Some transfers are less obvious. In particular, property rights can be altered through authoritarian changes in law. … An important implication of a transfer theory of government is that there will be a “train of readjustments through time” as a consequence of a modification in property rights. Some of the changes are predictable. For instance, a rights modification tends to increase the incentives of unorganized losing interests to enter the political arena, so we can expect political demands for rights modifications to grow over time. There are other reasons to expect growth in political demands, as well. After a group is organized, for example, the additional costs of demanding more benefits are relatively low and the group may become interested in issues beyond its earliest concerns. …

Because authoritarian law is intended to produce an involuntary transfer of wealth, it only needs the support of a politically powerful minority of the people affected. Laws are relatively more likely to change when they are a reflection of shifting and growing political demands than when they must be voluntarily adopted by all the affected parties. Evolution of authoritarian law, therefore, can be much less gradual than the evolution of customary law.
[Contrary to the assertions of the "chaotic", "inconsistent", "libertine" nature of anarchic law from Statists! —JP]
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Property rights provide incentives that condition behavior, so a change in rights is likely to change behavior. Because customary legal systems emphasize private property and individual rights, authoritarian rights transfers at least initially imply restrictions on private property and individual rights. When such rights are significantly altered, individuals will quit performing functions that were previously worthwhile. If the function is demanded by politically powerful groups, government will either try to force the previous behavior or directly produce the function.

Furthermore, when reciprocity does not provide the underpinnings of law, it will not provide the basis for law enforcement. Enforcement of authoritarian laws requires relatively more coercion, while customary legal institutions evolve to facilitate voluntary interaction. As the effective purpose of law changes, a different set of institutions is required to replace those that cannot effectively facilitate involuntary transfers. Similarly, government institutions cannot be as effectively employed to facilitate voluntary interaction as the institutions of customary law that have been replaced or altered.

Government institutions and laws have evolved to build upon or replace private institutions and customary law. This does not prove that laws and institutions are necessary for maintaining social order or for supporting a system that emphasizes individual freedom and private property. Authoritarian government laws and institutions are likely to do precisely the opposite, since their function is to facilitate involuntary transfers rather than voluntary interaction.

Posted in Divisiveness, Philosophy, Police/law enforcement