The creation of law from above, centrally planned law, only became a major part of lawmaking in the English speaking world in the nineteenth century.
In many places and times, law, for example the English Common Law, started with crimes and punishment, and then, from the efforts to ensure that one judge's rulings are consistent with another, lawyers constructed precedent, and then, from precedent, they discovered a legal framework.
Well respected lawyers would examine the decisions of well respected judges, and write books analysing those decisions, formulating an account of those decisions in terms of laws that explained their decisions and rendered them consistent with each other. Then if some judge deviated from this law, this law discovered and expressed by a lawyer with no official capacity, the lawyer pleading the case could complain, and did complain, that the judge violated precedent.
If the common law of England was actually written down anywhere as words on paper, it was written down in Blackstone's “Commentaries on the Laws of England” — but the laws he was commenting on were for the most part not documents issued by judges or legislators but interpretations of the conduct of judges whose conduct was widely accepted as right and just, much as Newton's laws are interpretations of the behavior of moving objects.
In an anarchic society, the nearest thing to legislation would be when one bunch of people made a compromise with another, to agree on rules convering conflicts between them.
The argument that you need law to be decreed from above, centrally planned law, has been used as an argument against anarchy, as in Nozick's “Anarchy, State and Utopia”. It is a silly argument, no different from the argument that you need the state to issue paper money, etc. The state does lots of stuff today, that it has not always done in the past, and one of the things it did not always do in the past was legislate.
Today the state does X, therefore we cannot have anarchy, for in anarchy no one would do X. Argument from ignorance. Nozick suggests that in an anarchic society, the only way we can have law, consistent rules, between people protected by one defense agency, and people protected by another is for one agency to impose its rules on the other by fire and steel.
In an anarchic society public good laws would be under provided, and private good laws would be adequately provided.
A private good law is a law where it is in the interests of a particular person to have the law enforced against a particular offender, for example the laws against robbery, rape and so forth. A public good law is a law where it is arguably in everyone's interest that it be enforced in general, but it is not in the particular interest of any particular person that it be enforced against any other particular person.
Most private good laws are uncontroversial, universally accepted, and almost universally enforced. Public good laws tend to be somewhat controversial, selectively enforced, and far from universally accepted, and the many infamous governmental crimes, for example the Jim Crow laws, were enforcement of public good laws. Laws prohibiting racism are also public good laws as much as laws commanding racism, but prohibiting racism tends to have effects curiously similar to commanding it.
One example of a fairly uncontroversial public good law is the law requiring cars to limit their pollution. A particularly offensive car would offend particular people enough for them to harass the owner, but many mildly polluting cars would not, even if their combined effect was intolerable. So in an anarcho capitalist society, cars might well be more polluting than they are at present. On the other hand, rivers and the like would be owned by particular small groups of people, who would likely be willing to defend their condition, whereas governments have been notoriously unwilling to protect a river against a concentrated interest, so rivers would probably be less polluted. Most communist countries had far more severe levels of pollution than most capitalist countries, because it was not in the interests of any particular person to defend any particular property against any particular pollution. Even when the state is present, private good laws tend to be enforced, and public good laws not enforced, thus the absence of the state is unlikely to make as large a difference in practice as it does in theory.
If a crime has a specific identifiable victim, who is the victim of a specific identifiable act, then that law is a private good, because each particular individual will have reason to enter into arrangements to ensure that such crimes are punished or avenged when committed against himself.
In order to suppress drugs, or exterminate Jews, you have to appeal to people's altruism and self sacrifice. People are very willing to be altruistic when they are voting, because they are mostly voting someone else's money. They are a lot more selfish when they are paying with their own money.
I will be willing to do what is necessary to obtain a defense contract that says that if I am robbed or murdered, I will be avenged. I will not be willing to do the same for a defense contract that says some stranger far away will be avenged, still less a defense contract that says some stranger far away will be punished for taking unapproved drugs.
In anarcho capitalism, private goods get supplied, because it is in the interest of particular people or small groups to supply them. For example there is usually someone who wants particular vengeance against a particular mugger. Public goods are under supplied, because although it might supposedly be in the interests of “everyone” that they be supplied it is not in the interest of any particular person or small group that they be supplied.
The under supply of public goods is often argued as a defect of anarcho capitalism, but during the twentieth century, the most important public goods provided were aggressive war, genocide, artificial famine, and mass murder, so if we lack those, I will not much miss the others.
Even if ninety percent of the population support a public good law, it will not be effectually enforced because it will not be in the interest of any one person to enforce it, but if a substantial minority support a private good law, it will be enforced, because it is in the interest of each particular person to enforce it as it affects himself.
A public good is something that is supposedly good for everyone, perhaps really is good for everyone, but does not directly benefit particular individuals, so there is no one individual who has a direct personal interest in doing something about this public good in any one particular case. A private good is something where in each particular case much of the benefit goes to a particular person or quite small group, so that in each particular case there is a particular person or small group who has good reason to make this good thing happen, good reason to themselves bear the costs of making this good thing happen.
If someone buys or snorts cocaine, there is no pissed off victim, there is no one pushing hard to make enforcement happen in any one particular case, so enforcement against liquor or cocaine generally would not happen, and so in an anarchist society such laws, by custom and precedent, would cease to be socially acceptable grounds for the use of force against someone, and thus cease to be laws.
Those offenses that would make any man use force in response will be illegal. Those offenses that would not make most people use force in response will be legal.
Doubtless some public good laws really are good, but the vast majority have been either bad or very bad. For example in an anti semitic society a law against Jews would be a public good law.
Collecting money and manpower to enforce a law against burglary would be like selling insurance. “If you contribute, you can put a sticker on your house that says protected by XYZ”. Collecting money and manpower to enforce a law against prostitution or abortion would be like collecting money for charity, or manpower for a neighborhood clean up. It could be done, it often would be done, but the amount of money available would be considerably less, and the willingness to engage in violent confrontation, the willingness to hurt, upset, and anger people, would be vastly less. Observe how no one wants to enforce the law against pedophilia, if the pedophile is someone they recognize, and the child is the child of a stranger.
The average person is willing to bring out his gun and look for trouble if his next door neighbor is being burgled. A similar enthusiasm for trouble about a dirty book store seems unlikely, because the dirty book shop does not threaten any particular individual the way a burglar next door threatens someone. If you are a long way from the dirty bookshop, you probably do not care very much. If you are right next door to the dirty bookshop, then you still do not care the way you care about robbery, murder, and rape, and in addition the proprietor and some of the regular customers are real people to you, and you would not want to make them unhappy.
Burglary would be illegal in anarchist society, and dirty bookstores legal, because lots of people are willing to shoot burglars, whereas only a dangerous nut would be willing to shoot a proprietor of a dirty book store.
If John caused violence to be done against someone who was proven to have burgled him, this would not make people fear John, this would not make people wish to protect themselves against John. Thus John's action would be treated as legal, and thus burglary treated as illegal. Because John gets away with treating the burglar as a criminal, the burglar is a criminal. (I assume that John or his insurance company goes to the trouble of arranging a trial that is likely to persuade the burglar's friends, relations, and militia association that John has good cause to believe the burglar guilty.)
If Peter caused violence to be done against a dirty book store proprietor, this would make people fear Peter, this would make people wish to protect themselves from Peter, perhaps by causing him to be imprisoned, or forbidden to bear arms. Thus attacking owners of dirty books stores would tend to be regarded as illegal, and so selling dirty books would tend to be regarded as legal.
A person who attacks the owner of a dirty book store might attack me. A person who sells dirty books is unlikely to attack me. Thus I would be motivated to support the use of force against someone who used force against the proprietor of a dirty bookstore, and would not be motivated to use force or support the use of force against someone selling dirty books.
That use of force that most ordinary peaceable individuals are inclined to employ will be legal, and thus the activities they use it against illegal. That use of force that only weird, scary, dangerous, aggressive people are inclined to employ will be illegal.
The age of consent would become a matter of parental discretion, which does not much resemble today's written law, but does resemble today's practice.
If there were important issues of law where the answer is unclear, and also large numbers of people were likely to care passionately about these issues and be willing to kill and die over issues, then anarcho capitalist law would not converge. I do not see this. All issues of law that are genuinely open to question are either obscure and complex things that most people are unlikely to get very excited about, or even comprehend, or they are public good laws that just will not get enforced very effectively anyway.
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