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The anarcho-capitalism shirt in the sixth picture (worn by Pete from Bureaucrash) seems quite fitting with the theme.

So which customary laws are important? Which are valuable? Certainly the US/Western understandings of property and the market are not shared universally--now or ever--and are and have been imposed, first by direct imperialism and now indirectly through international institutions. These customary laws, therefore, MUST be voided, from above, by international institutions in order for the property arrangement privileged by the Austrian assumptions about human interaction, the state, etc. to reign in those territories and for the fantastic bounty of the heavenly bodies that are Multinational corporations to have any hope of reaching these poor, unpolished, uncultured rubes.

Yet what you pretend to be saying is that customary laws are more valuable: so what if these customary laws don't adhere to the Austrian vision of human interaction? Carol Rose's work on this has been useful. cf: this comment from her article responding to Michael Heller, and speaking about the history of US ideas about property, particularly in relation to the native people who lived here before them:

"Our law has been particularly hostile to most forms of collective property, particularly those in Ostrom’s CPR range. This too is an interesting puzzle. My own view is that some of this hostility is a historically self serving myopia. Out leading case about Native American property claims is Johnson v. M’Intosh, where it might have been possible to recognize property in native tribes; but the Marshall Court, while not completely dismissive of all Native American claims, ignored the possibility of collective ownership. The logic seems to have been that the tribes were not cognizable sovereign governments (hence public property was not possible), not did individual persons in the tribes have recognizable common-law claims to property. Those two possibilities, individual property and governmental property, appeared to exhaust the Court’s idea of what counted as “property,” illustrating Heller’s point that our categories have seriously—and unjustly—limited our property imagination. While probably not so intended by Marshall himself, any excuse to ignore native property proved to be highly convenient for settlers."**

She goes on to describe the reasons for this as having a more rational basis than, perhaps they did. The governance by customary norms, rather than formal government was seen as “mired in swamps of medieval feudalism, hierarchy, and rigidity; in particular, they thought that customary law was incompatible with democratic forms of government, in which communities pass laws for themselves not by looking to the past, but rather by looking to the open actions of democratically-elected representatives.” In the Law & Economics tradition, this is very interesting because, although they wouldn’t call it such, these sorts of “customary norms” are what they usually rely on as an unstated basis for their claims. The arrangement that she cites as an example of this kind of arrangement is that of certain native lobstering communities using low level violence against outsiders and community norms amongst themselves. Of these norms, she notes that they are often xenophobic, misogynistic and “hardly seem paragons of democratic rule and equal opportunity.”
This may very well be the case, but ironically, there is a sort of convergence with theories which purport to represent such a paragon, namely, those of Nozick and his “minimal state.”

The difference is that Nozick simply assumes these community norms exist—the nasty processes that might ensue around discovering what someone’s “natural rights” might be is left up to some undiscussed mechanism. Instead, we can focus merely on the “resources” which the community might have to police itself, without the need for a state. In this, he spends far more time trying to create equations and scenarios for how people can be compensated for various transgressions of their property. There is, in this, no real sense of where these scenarios will come from, how they will be negotiated or by whom they will be enforced: it is a basic, economic framework which, though unstated, assumes much of the Coasian model of economic allocation of resources in the absence of a government. However, if it were to actually function, in practice, it would likely have to look more like the “customary commons” mentioned above, which was conveniently declared suspicious in the supposedly more democratic era of the United States western expansion.

In short, it seems a bit late in the game to say we should do away with the state and just let the people police the property they own themselves--though I suppose Russel Means and the Lakota Nation would agree to this, if only they could get those pesky white folks off their land and get recognized as representatives of the tribes in question.

**the cite is from Carol M. Rose, "Left Brain, Right Brain and History in the New Law and Economics of Property," Oregon Law Review 79 (2000). p. 485.

Sean, there are no simple answers to the questions that you raise, but you might like to consider the role of the extended moral order as sketched by Hayek in his last book, The Fatal Conceit.
One of the most exciting outcomes of 20th century scholarship in political economy and the evolution of classical liberalism is the synergy of the leading principles of classical liberalism in generating prospertity, freedom and peace. This does not permit an immediate end to poverty, tyranny and war but it points the way to win/win outcomes in situations where other schools of thought can only envisage win/lose or negative sum outcomes. A big claim to make in a short comment, but just keep on trucking with the Austrians and classical liberalism for a while and see what you can find!

Pete -- can you cut, paste, and post this over on our EWOT blog. The students over there should read it.

I've read Fatal Conceit and find it, well, conceited. The extended moral order is just a different word he uses for "society" because he's afraid of sounding like a socialist. Other than that, it seems completely ahistorical and makes ANY other cultural or social ordering than his ideal incorrect and anachronistic. This was precisely the kind of position I'm critiquing.

I'd also mention that, whatever the different indexes tell you, the recent round of liberalization has certainly not affected everyone equally--neoliberalism has exacerbated the already unequal societies in South America and the prosperity of Asia has largely taken place in strong states like South Korea or US satellites like Japan, both of which were given preferential trade tariffs and subsidies of one kind or another by the US for the early post-war era. In other words, simply imposing the liberal model--which should, if Austrians were true to their convictions about freedom, excite more than a little outcry since it is imposed from above--wholesale is inadequate in and of itself.

Thanks Sean! This may not be the place to work through these issues because we may have to agree to disagree about too many things, like the appropriate social and economic indicators to use. I would really like to know what framework of institutions and traditions (what kind of moral order) you think is required to achieve sustainable improvements for the poor of the developing world. By sustainable I mean something other than a kind of "Robin Hood" redistribution a la Zimbabwe which makes some people happy in the short term but does not deliver in the medium to long term.

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