Legislation, Predictability, and the Rule of Law: A Romanian Discussion of LFFS Ch. 13

Pre-Show Banter

0:00

Speaker #1: So you didn’t want us to solve your problem before the show. I’ll ask you on the show what… Well, yes, exactly, they were no longer in Crimea, they were even a little higher up from Crimea.

Munteanu: Don’t let me catch you ruining my show.

Speaker #2: Yes, you have a plan. Oh, good that you’re okay. Let it go.

Munteanu: Okay, be careful. Okay, now be careful what you say. Anyway, anyway, this part changes the subject. Anyway, this part that still doesn’t have a way to tell them, that doesn’t have a camera on yet, has no way of getting on the show.

Speaker #2: You can turn it into a black market. I had a camera on.

Speaker #1: Oops!

Speaker #3: I was saying, Costel, why don’t you check if there’s a resemblance? Wait, I’m also under imminent threat.

The Presidential Race and Political Charisma

0:56

Costel Stăvarache: Oh, [laughter] okay. [snoring] Man, this Fritz is doing well in the polls. I’m not even voting for him. I didn’t hear him speak. You realize I’m not helping him.

Speaker #1: But what are the chances? Well, let him come to trust.

Speaker #2: No, but what president? Come on, man.

Costel Stăvarache: Of the country.

Speaker #2: Give it a damn. No, after Iohannis, after Iohannis, I’m sorry, I won’t like it. I won’t.

Speaker #1: That’s what I thought too. German quality.

Speaker #2: I won’t [laughter] want to.

Costel Stăvarache: Yes, but this one is more charismatic.

Speaker #1: I understand. Have you heard him speak? And is he charismatic or not?

Speaker #2: No. [laughter] Think charismatic. I understand that it’s not charisma. Think charismatic was Băsescu.

Speaker #1: Well, I don’t know. Well, yes, but in that or for some charismatic way, Orlando was. [laughter]

Speaker #2: This has a classic user profile. That [trained voice] socialist, that one with that European clean-cut, you with a soft voice and I don’t know. You’re going to give it a little more like that. So.

Speaker #1: Don’t you like Băsescu? [trained voice] You put it.

Costel Stăvarache: I say he has a chance. I mean, I don’t see Simion being able to keep the percentages. He didn’t keep them then either. But I don’t understand the massacre thing. I mean, you can’t just hit them back to finish them off. It’s not that they don’t listen to you.

Aggressive Journalists, Elon Musk, and Accusations of Antisemitism

2:16

Speaker #2: Yes. Haven’t you seen those journalists who are bullies and… “But why not?” “Well, you didn’t answer our question,” and it interrupts you and you can’t bet. You can take it. So I saw two reactions, to a politician in Canada and to Elon Musk. They were just aggressive.

Speaker #1: Well, yeah, yeah, but those short things are Elon, while this one isn’t that cool.

Speaker #2: “Elon Musk is not promoting antisemitism and just watches Twitter full of antisemitism and racism and I don’t know what.” “Give me an example.” That’s all he said. Hm. “I didn’t find [any].” Yeah, it falls [laughter] like that, you know, right? “You said there were a lot of them.” One gives, one gives one. “You shouldn’t have broken that guy’s leg,” he did it like that. Poc.

Speaker #1: Okay, and contextually, maybe there was someone who said, “Wait, I’ll show you,” [laughter] and you said, “Let’s take it,” they had it, not that I’ve invented Nazism, you know?

Christian Interpretations and Philosophers Painted on a Church in Târgu Jiu

3:15

Speaker #3: Look at the merchant’s Christian interpretation of the Odyssey. On audio, a podcast of his.

Speaker #1: Are you crazy?

Speaker #3: Yes. Him with another one. Yes. Take that fat Haman. Yes. And they say not everyone was wrong. It’s about Christianity there, both of them. Please, call.

Speaker #1: I’ve heard a lot. [laughter] Be careful, be careful. In the church, on the exterior painting in Târgu Jiu, in front of the city hall or the County Council, I don’t know where, there’s Plato and Socrates next to the saints.

Speaker #2: Oh, Tidu didn’t know, he said they were saints. [laughter] And what are they doing here? They’re drinking a ring glass and leave quickly. Maybe at the beginning he was saying, “What gave you the fortress of…? What’s wrong? Come and drink from the glasses.” No, I know. [trained voice] Some coke came. Have some coke like this. What did you do, friend?

The Cat in the Studio

4:17

Speaker #1: What is it weaving?

Speaker #2: I like that corner. Leave it, leave it, leave it, leave it so I can… Have you seen those movies with cats pushing other cats down? That’s why I allowed myself. Actually, he wants to stay on the ventilator. That’s it.

Speaker #1: I don’t think he wants to stay. He doesn’t like the fan.

Speaker #2: Sometimes I get an itch if I do that too. Yes. That’s right. And that corner is fine [laughter], or on the door frame. It depends on how much it itches. It might scratch. It’s not like that when you do it like that. It’s aaaa aaaa aaaa aaaa. It has a job. It’s sitting down. Bravo! Wait a minute.

Munteanu: Wait, do it like that. Come on, everyone. No, no, no, not everyone on the microphone.

[ 5:00 ]

Munteanu: But have a little patience. I’ll say it. 1, 2, 3, and when I say it, click. Yes. 1, 2, 3, and…

Opening Music

5:10

[music]

Welcome: Chapter 13, “Legislation and the Discovery of Law in a Free Society”

6:03

Munteanu: Hello! Welcome to a new episode in Dodi. We continue Stephan Kinsella’s book, Legal Foundations of a Free Society. Chapter 13, “Legislation and the Discovery of Law in a Free Society.”

Channel Announcements: Likes, Subscriptions, Telegram, and Support Links

6:18

Munteanu: You have the floor first, but I’ll ask you to like the video so it goes into Google’s algorithm. At least that way we are informed that it is happening. A share if you want us to annoy someone else, a subscribe if you want to hear more about us, and also, if you keep clicking subscribe, also click that damn bell and select to receive all notifications, because otherwise YouTube won’t let you know when we’ll put another video on the channel. Especially now that the vacation period is coming and fall school is at stake, we might skip a week, and then it would be good to know when we put the next episode.

If you want this, of course, in the description you’ll find a Telegram group where we can talk. I am pleased to note that the discussions there have been more lively lately. You will also find a link where you can buy, or where you can read, Kinsella’s book, that is, the one we discuss here, online in English, of course. Also, in the description you will find a link to Misstela Bred’s school, where we will also go this year if you want to meet us live. Don’t come with guns, please, and maybe if he gives them to us as a gift. Also, in the description you will find a link to crypto and a Patreon, if you want to support the efforts we make here, and we would like to thank those who have already used these links.

A Subscriber Who Never Got Notifications

8:08

Speaker #1: Look, I met someone at the café and he said, “Yeah, I’m a subscriber to Laodi, but I haven’t watched it in a long time.” But who are you? [laughter] And that thing told me it rang the bell, you know? Because of the cause. So he has 1,000 or so subscriptions and he’s… You realize he’s a wizard out there. If you don’t have the bell set to ring for you, a notification comes on a phone or something, you don’t realize.

Munteanu: Yes. And it has to be “all,” because otherwise YouTube is stingy. If you have over 100 subscriptions, it doesn’t send you notifications at all.

Speaker #1: Yes, you have to go to subscriptions.

Munteanu: On the other hand, if you go to the subscriptions page from time to time, you have a chance to see it there. But now we put out an episode once a week, you know.

Speaker #1: Yes.

Speaker #2: Yes, but it’s not like the schedule is hard to remember. Yes, either we have a show on Monday at 8:00, or in the worst case we don’t have one.

Munteanu: Yes, it is. [laughter] Yes.

The Thesis: Customary Law Versus Legislation

9:21

Munteanu: Good. We talk about legislation and how the law comes about.

Speaker #1: Legislation, yes, and how the law comes about. The contrast, let’s give the contrast between continental law and customary law.

Munteanu: That’s the thesis. Kinsella’s side is that the customary one is more liberal, not just his and others’. I think Rothbard’s, Bruno Leoni’s, Hayek’s too. And that’s the discussion, that one would be more liberal and that one more positional.

[ 10:00 ]

Kinsella’s position is a little more nuanced by that, in the sense that he, at least that’s what I understood from his writings at the end of the chapter, that he even prefers Roman law to customary law, at least in terms of the way in which property rights are regulated, which Roman law would also be a form of discovered law, by the nature in which it was practiced, with praetors, with judges who had to… So it would be a Roman custom.

Speaker #1: It’s all customary.

Munteanu: Yes. At first, novel at first, until they started the Senate legislations; otherwise don’t talk to him about the old law.

Speaker #1: About the old law. Ancient.

Munteanu: Good. And in the opposite perspective to these two forms of customary law is legislative law, legislated by what he calls emanated from the state, which unfortunately is the state we have been in for far too long. Not to say that… not to say anything else.

Hammurabi’s Code and Law Emerging from Custom

11:21

Speaker #2: Yes, maybe that’s enough. Yes, Hammurabi’s was ok.

Munteanu: We don’t know enough about it, but it’s very possible that the way it was written, it was just a compilation of a law that was in effect at the time. That is, there are many things that seem to be included in it that seem to be emanated from existing customs.

Speaker #2: Okay. And the customs also emerged from some intuitions. What comes to mind for you? What comes to mind for me is the first thing about the Code of Hammurabi and the architect, well, the so-called architect, and the architect is responsible for the smooth running of a house. It was this thing. And then you think, well, how did this thing come about? It was from people’s intuition which, well, was more natural; more tiring to walk through the labyrinth in a house made like a labyrinth or with only sharp angles. They said, you know, something that didn’t fall because it seemed like it was…

Speaker #1: Yes, well, it’s a kind of steak.

Speaker #2: It seems natural to hold others who participated in a… However, from practice to this day, because I think the complexity has become much too great on the production chain, you can no longer… You say you have a warranty on cars, all kinds of objects, tra-la-la, but that too was hit by legislation.

Two Ways to Establish Law: Centralized and Decentralized

13:13

Speaker #3: Yes. To you, I’m going to tell you practically, maybe it helps, maybe it doesn’t. I don’t know, one thing you can do is to see the differences between those two, what is the difference, or maybe there is no difference, between customary law and the other one that was, how do you call it?

Munteanu: Well, that’s what Kinsella says, that’s what he says here, that’s the right. Yes, there are two ways to establish the law, let’s say institutionally. The first would be institutionally centralized, right? Which would be based on legislation, and the second would be decentralized, which would be based on the discovery of the law by multiple judges in practice.

Speaker #3: In practice. Yes, exactly.

Munteanu: And Kinsella’s argument throughout this chapter is that only this decentralized system can be compatible with libertarian principles, because it would actually be a methodological issue that violates libertarian principles. No, no, it’s not so much a discussion on the content of the law, but the methodology itself, if it is adopted, violates libertarian principles from the start.

Speaker #3: If you do, are you making laws or what?

Munteanu: Yes, yes. It gets to this argument right at the end. Good. And we have two… Do you want to say something? Say.

Bruno Leoni’s Paradox: Free-Market Economists Who Accept State Lawmaking

14:58

Speaker #2: Yes. [trained voice] I didn’t exactly understand Bruno Leoni’s remark.

[ 15:00 ]

It seemed paradoxical to him that [trained voice] economists who fought for a free market in the economy said, “Sir, it’s ok if there is a legal system established by the state,” and they saw no problem with this mixture of the free market and a centralized system of lawmaking.

Munteanu: It has to do with the whole argument made by Leoni further down in the chapter, yes, which Kinsella exposes, which is based on the fact that in an activity like… and somehow it’s an argument that we make quite often. Yes, sir, you say that the free market is the best method by which you get what the world wants. Yes. After which you turn around and say, “Yes, but it doesn’t work here.”

Speaker #1: Yeah, I mean, that’s kind of what it meant when, at Misses, this argument is brought to him. “Well, and why not?” And he thought, and at a certain moment said, “Well, yes, it also goes to the state.” [laughter]

Speaker #2: Yeah, you see, that’s a thing. That’s what he thought, although I don’t know if he thought about it very much, yes, but he’s stressed.

Speaker #1: I mean, at Leoni, well, who’s afraid? Leoni is not a capitalist anarchist, he’s a classic liberal, you know? I mean, he doesn’t want to.

Speaker #2: Wait, Leoni said you need a framework, or that thing the [other one] said, if not, said how these economists do not support freedom in the field of legislation, you know?

Munteanu: Leoni did not support the abolition of the state, but he did support, at least, privatization, not necessarily privatization, as much as the decentralization of the lawmaking process, so to speak. That is, the return to a system whereby judges discover the law based on cases.

Speaker #2: Ah, so this would be one of the criteria, right? Once the judge makes the law, he doesn’t…

Munteanu: The judge discovers the law. Beyond that, the law is made by the legislator, and the judge only discovers what the legislator has made.

Speaker #2: He puts it into parliamentary practice, he often invents it, because that’s what he creates.

Speaker #1: The problem is that the parliamentarian creates it. Yes. She has it from the office.

Historical Origins of Common Law and Civil Law

17:37

Munteanu: Yes, look, we can get into these discussions, but first let’s talk about what he says, some historical characteristics about what a system of civil law, or law of the commons, means. In fact, you know that the origin of “common law” is somehow “common,” and of the people, population.

Speaker #2: Exactly. It can refer to both, even though it’s not folk, but no, but it was inclusive, including today the House of Lords and the House of Commons in Britain. That means commons, and then you say commoners are the people who are not nobles. [snore]

Speaker #1: This arrangement by class was right. Civil law, how would it come, when…? Well, the civil law of stupidity between…

Speaker #2: Yes, the law of stupidity. Yes. The right of the fool somehow, or the right of the commons, [laughter] as it would come.

Munteanu: Good. And say, so these are based… So the law of the commons is based on case law in Great Britain, from England actually, which was gradually established over centuries of practice and which then spread to the English colonies. So at least one of the good things that the British Empire spread across the globe. So we have remnants of this decentralized system present in areas like America, Canada, Australia, New Zealand, partly in India.

And the modern civil law system, says Kinsella, is based in part on Roman law, which also developed many of the legal principles

[ 20:00 ]

based on the decisions, on the accumulation of decisions from thousands of cases that occurred in the Republic, in the Roman Republic. And examples of this type of law, civil law, are all over Europe and other jurisdictions like Louisiana, Puerto Rico, Quebec, Scotland, and Latin America.

Speaker #2: I’m surprised that Louisiana, which was American, kept [laughter] French things.

Speaker #1: Well, yes, but it’s somehow America’s fault, she thinks. Think about it like, not like Louisiana is cool and Quebec is full of haters. I mean… [laughter]

Speaker #2: And Jefferson used French stuff in the Declaration of Independence.

American Federalism and Variation Across Jurisdictions

20:57

Speaker #3: The principle by which the United States united was, at least until the violation of this principle by Abraham Lincoln, that states legislate as they please, and the federal government just manages the association of these states.

Speaker #2: Yes, yes, yes. Just like how they arbitrate disputes between states in the Union.

Speaker #3: Okay. And then it wouldn’t have been [trained voice] necessary to change.

Munteanu: I was saying that there are differences between them, even though they have evolved in the same way, because the common law tradition is more concerned with… You hear that with this decentralized approach you can have contradictory solutions.

Speaker #2: Yes. Yes. I mean, “truth on this side of the Pyrenees, error beyond,” not necessarily as geographical as you are present now, but in the regions. At least the north of England may have been… but it is not excluded that “taxation is theft” in the south was…

Contradictions Over Time: Romanian Tax Policy and Free Economic Zones

22:16

Speaker #1: Yes, but be careful [laughter]. For example, in our country it is not, because of the way the continental legislative system exists, not geographical, but it is in time, and this difference…

Speaker #2: Yes.

Speaker #1: For example, in our country, Romania is criminalizing itself, for example, taxation, not applying tax to work less than full-time. Hm. At minimum wage, how would that come. You know? Hm. This thing happened about five years ago. Now, this year or last year, they said we were wrong. “Really, it’s not good to tax labor any less than that again. We need to get back to the proportional thing,” you know? M. So you have, how to say, variations over time. Then it’s good, now it’s bad. In two years it might be good again, you know? So you have…

Speaker #2: And at the same time?

Speaker #1: No, [laughter] I haven’t encountered that yet. I’ll give you an example, you know? But you know, if it’s at the same time, you have different spaces, or…

Speaker #2: Ah yes, at the same time you have… You had zones, I don’t know if you still have free economic zones, or I don’t know what they were like. Hm. Near the Danube you had a few; there were some disadvantaged areas around Petroșani. It had a different taxation system than the rest of the country. So there it’s good to have no taxation and fees, but otherwise it’s not good in the rest of the territory, because…

Speaker #1: So our understanding is that you’re looking for a mechanism; it has to be healthy everywhere and in time.

Speaker #2: No, that’s flexible statutory. [laughter] While the state, not doing… the state has another target than we set ourselves. We come up with it because it’s logical, sir, we want it to be a coherent thing. And the state says: “No, no, no. My goal is to keep people on a level, and if they’re lower I tickle them. If they’re higher, we overcharge them, and that’s how we shepherd them.”

Munteanu: Well, that’s exactly it. It violates one of the principles of a just law, but I’ll talk about that a little later.

[ 25:00 ]

How Legislation Infected Even Common-Law Countries

24:54

Munteanu: The idea of ending [cough]: this law of the commons, or civil law based on the Roman system, no longer exists anywhere in the world really, because it was everywhere, including where it formed a body of what he calls a legislative body, healthy, like England and even America. It is infected by legislation, because at some point, over time, pretty much everywhere, how should I put it, people have fallen prey to the temptation of the power to legislate, right? And excuse me a little, people to legislate institutionally.

And he always emphasizes that a strong part of laws, an important part, interesting for people, that’s what I want to get to, is to have certainties and therefore to have predictability. And people were seduced by the idea that if you give something, something that goes everywhere, you give it from above, e.g., see, God, equal for everyone, it seemed like there would be predictability, and they said: “You do it, you make the institutions, the laws.”

Speaker #2: Yes.

The Enlightenment Ideals Behind Civil Codes

26:23

Munteanu: And here he is, then he proves that… and here he talks about these types of legislation, which is not legislation that was founded on rationalist principles. And for example, he says the principles of civil law systems, of Louisiana civil law or French law, they say were drafted based on the spirit of the French Enlightenment, of course, and stand on an ideological commitment to democracy, economic liberalism, private property, freedom of contract, individualism, natural law, and justice.

Speaker #1: If it seems to you that there is something in the French legal system that still cares about these declarative things…

Munteanu: So. And obviously, at a declarative level, any libertarian would say, yes, these are all good things, they are, and these are some virtues. Yes, individualism means that, but what are they actually?

The Concepts Necessary for a Libertarian Law

27:51

Munteanu: “The concepts necessary for a libertarian law,” says Kinsella. Well, we have individualism, yes, the fact that rights belong to the individual, and only individuals have these rights, and we can even say that they are absolute, and that they have a right to do anything as long as this anything does not constitute aggression against the rights of another individual. It is more so as to codify the principle of non-aggression.

In fact, Rothbard also says at one point that in order to have a libertarian law you can start from common law, and to arrive at a libertarian law you just have to brush up on all interferences that would constitute violations of the NAP. That libertarian law is simple. All people are equal before the law. The only thing that is illegal are violations of the law.

Speaker #2: That’s right. For those who have pleasures like that, they should start reading with Rothbard. Here you go. I liked Kinsella for giving a little demonstration in a sentence, in the kind of things that we do too. You have this base that you just said, and he said the rest goes like this, logically, if you want these other assaults, theft, murder, etc.

Munteanu: Yes, I would say, if we were to pass it on, I would say so: in a libertarian society that accepts libertarian values, you don’t need to codify the law, because that’s what it is, everyone knows what it is, and the judges don’t really have much to discover from the law other than how it applies in certain cases.

[ 30:00 ]

Speaker #2: Yes, little one.

Munteanu: I mean, starting from the principle, they say, ok, it applies in this case like this, in that other case like this, depending on what case is presented to them.

Codified Detail Versus Principle: The Example of Theft

30:13

Speaker #1: Yeah, yeah, that seems more scientific. For example, experts, yeah, when there’s a theft, you know?

Speaker #2: Ah, you say the law should be “if you steal you will pay.” Yes.

Speaker #1: Yeah. Aha. Okay. Well, first of all, the law says theft is assault. So it says in the law that if the theft occurs at night, it is an aggravating circumstance. If you had a gun with you, if there were more than one of you, conspiracy to commit theft. All sorts of things. So all sorts of stuff written there is enough, you know? And yes. Do you want prediction? [laughter]

Predictability as a Requirement of Good Law

30:59

Munteanu: Well, that’s exactly the point, you don’t have much predictability. Okay. And since we’re talking about predictability, one of the main arguments of the law itself is this: that, sir, for a law to be good, besides the fact that it should be the same for everyone, it should also be predictable, in the sense that it should be more or less constant, so that we can make long-term plans that take into account the laws, the existence of laws, respectively in the form they are. And here maybe you want to tell yours, the one with the companies and the legislation that had to remain sealed.

A Proposal: Freezing the Legislation That Applies to Each Company

31:51

Speaker #2: I refrained, but if there are many people, I can identify the problem. This is when they would do a business the way they want, not the way things are now. Yes? How would you like to do business fairly, while respecting others? Well, if it’s still about having legislation, then the type of taxation, let’s say, to simplify, the type of taxation that… When I enter the market, why do I need a state authorization? It’s a kind of contract between me and the state, I mean, the company representative. Okay, what are we getting here? What are the terms of the contract? “Well, we’ll charge you x%.” Okay. So how long, how long do I keep changing these things?

It could be a regulated activity, I mean, it could be maybe to have regulations in your field of activity, you know? And these are in effect at a certain point in time, and should be over a period of at least a… the kind that some people visualize with reference to intellectual property, you know? I mean, let’s do it with the state, let’s make a contract. For how long? For 20 years, for 50 years, because these are the rules that apply to this company. Yes.

Of course someone will say, who, I bet, will rush to say, someone will say, “Well, how can you have a bunch of companies with different rules if they have changed over time?” I don’t change the existing one, but I put a new one in. Well, maybe it will be harder to put a new one in. Or if you put a new one, not only will the motivation to put a new one decrease, because it will only affect those who open their companies tomorrow, but the rest of the work is like any other contract. It’s like Alexandru said: I have made a contract with the government. You told me these are the laws. Based on these laws, I made the contract with you.

Alex Chiriac: We put them in the contract. We put them in, we attach a copy of everything, and that’s how the Official Gazette is sold just for toilet paper.

Speaker #2: Yes. We attach to the deed of establishment of the company an extract from the Civil Code that refers to the activities, the CAEN codes, it carries out, and if they change the CAEN code, we’ll add other laws from the moment of the change.

Speaker #1: That’s because you accidentally said the constitution of the property, and where we put the deed. But also any property, basically, it’s my job, it’s my business, and then also the regulation of property, if we’re still thinking about regulations like now, and then should have the same.

Speaker #2: That argument will be the argument you said it will be. It’s an argument, not that it’s too complicated.

Speaker #1: Yes, but the contracts today are all unique. We don’t have a STAS contract for Romania.

[ 35:00 ]

Speaker #2: It’s no more complicated than any kind of contract trial. Yes.

Speaker #1: Well, yes, but the law is no longer general then, it’s…

Speaker #2: No, the law is general, it’s legislation. The legislation is still general. The legislature is calm enough to do exactly as it has been doing until now. It’s just that for a company established, it freezes the legislation to which it applies for a period of years.

Law, Legislation, and Liberty: The Anarcho-Capitalist Case

35:34

Munteanu: Yes, please. Good. Law, legislation, and liberty. In the anarcho-capitalist case it’s simple. We don’t have a state, we don’t have a legislator, we have no legislation. The only way a law can be established is by common understanding, through private court systems; likewise, the enforcement that can be done is private. Everything is as decentralized as possible. So, from the perspective of decentralized law versus legislation, for anarcho-capitalism it is simple. It can only exist in one direction.

But we’re not all anarcho-capitalists, unfortunately. There are also those libertarians who, let’s say, stopped at Mises, or read a little Rothbard but didn’t internalize it.

Speaker #2: Yes.

The “Libertarian State” and How It Would Make Law

36:34

Munteanu: So there are still those libertarians who still see a role for the existence of the state. Yes. And then in a case, and this too, as he says, it’s a meme on the internet, “in a libertarian state” [laughter], yes, how [tight voice] would the legislative process be solved?

And Kinsella’s answer is that it means the question there is: ok, how will it be achieved? Will it be achieved by the legislator, as is happening today in the vast majority of states, or, to be compatible with libertarian principles, will it have to return to origins, that is, not to a blank slate, but return to the way of discovering the law through decentralized private tribunals?

And there the answer, well, we anticipated it a little. We would say that it is very easy to say that the state is libertarian and the law should be libertarian, and then I said five minutes ago what should happen. Yes, Kinsella, but we know that because we read the chapter to the end.

The Rule of Law: Predictability and Non-Arbitrariness

37:53

Munteanu: Kinsella, to reach that conclusion, goes through the following argument, namely that the law must be predictable.

Speaker #2: Predictable. Yes.

Munteanu: So here, sir, we can’t have a government that has an arbitrary law like this, sir, today like this, tomorrow like this. It applies to some people this way, to other people that way.

Speaker #2: It simply means that tyranny is bad, and the one who judges, judges, I don’t like.

Munteanu: No, that would be what has become entrenched in our language under the phrase “stat de drept.” In English it would be the rule of law. Yes. Which assumes that there is no arbitrary power on the part of the state to judge, not to punish its citizens or confiscate their property in an arbitrary manner, and that every man, regardless of status, genealogy, pedigree, and position held, is an equal subject before this law.

What Does “Non-Arbitrary” Mean? The Redheads Example

39:29

Speaker #1: Okay, in libertarianism you can’t confiscate non-arbitrarily, right?

Munteanu: Yes.

Speaker #1: Pretense, or what does non-arbitrary mean?

Munteanu: Well, you can’t arbitrarily confiscate. As restitution, it’s not arbitrary.

Speaker #2: As aggression.

Munteanu: Well, as an aggression, you can’t seize it arbitrarily, nor can you seize it non-arbitrarily.

Speaker #2: You could say, for example, that redheads are only entitled to 50% of the salary. And that would also be arbitrary.

[ 40:00 ]

Speaker #1: It’s not. It’s not arbitrary. It’s 50. The part that’s arbitrary is 50%. Redheads are no longer arbitrary.

Speaker #2: Well, it’s inevitable that it applies to all redheads.

Speaker #1: Yes, but not to all people.

Speaker #2: Well, not to all people. It means it’s arbitrary.

Speaker #1: No, the arbitrary in my head refers to how the decision was made; that arbitrary is in the application, not in the saying. It is in the application, not in the decision-making.

Munteanu: Not in the decision-making. Okay. When you talk about what Hayek had in mind, when you talk about the bureaucrat’s discretion, let’s say it’s arbitrary, you know? You understand?

Speaker #1: Okay, let’s say it’s not arbitrary. First of all, I’m not clear on what non-arbitrary means, you know?

Munteanu: Well, it’s about actions. So if you look at it again, this definition, he says, is predictable and universalizable: the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property. So, it’s about actions that happen arbitrarily slash discretionarily. Yes. I mean at will, that would be arbitrary, at the will of the governor.

Predictable Is Not the Same as Just: Rothbard’s Criticism

41:14

Speaker #1: Ok. And if it’s not arbitrary, it’s under the empire. It’s under the empire, be careful. If it’s predictable… Rothbard’s criticism: it’s predictable, you know? In 10 years, yes, they’re making you slaves. It’s predictable, you know? The law is not arbitrary, you know? It’s still a nose. Is it fair, you know?

Munteanu: No, it’s not fair, but the answer is that, everything else being the same, it’s better to know than not to know.

Speaker #1: You don’t know. Okay. [laughter] Right.

Munteanu: You don’t know if he says… A few minutes ago, then, even a few minutes before, it’s better to know than to be treated like an animal.

Speaker #1: Yes, yes. But in general, I think about how correct Rothbard’s criticism is, that we can’t all be slaves. Okay, I was also thinking about the situation where slavery is mutual, you know?

Mutual Slavery and Universalizability: The Borg Analogy

42:05

Munteanu: Yes.

Speaker #2: Okay, that’s stupid. You know that if we are, we free ourselves.

Speaker #1: Exactly. [trained voice] We give in to the idea of a ban if it’s the law, and after that you can’t do it anymore; you break the law, and everyone remains a slave to one another.

Speaker #2: Oh, so crazy, right? You can possibly put a ban; you’re not allowed to cancel them.

Speaker #1: Well, yes, yes, yes, yes. I mean, I’m your slave, you’re mine. You know? You know why I say that? To make the rule general, you know? Because one criticism could be that it’s not universalizable. It’s just that some are masters and some are slaves. You know? It’s not universalizable. And this answer could be, not that we are all… You know what my dilemma always is [laughter] when we get to these discussions? So you have situations of societies like the Borg from Star Trek, where there are some very strange rules, but it seems that it works, and my dilemma is whether outside of the movie, yes, if you played all the scenarios, it really worked.

Speaker #2: I’m going to find that a lot… No, sorry, not outside the movie, outside the script, so in other situations. That said, I’m going to find that many of the premises in Star Trek aren’t thought through to the end.

Speaker #3: Well, that’s it, let’s not talk about Star Trek, because it was cool when it was cool.

Speaker #1: Well, if it were related, you know? But it’s like, we don’t have that mammoth anymore.

Speaker #2: Whose delegate? Yes. What? Whose?

Speaker #1: Well, at that center, it’s like delegating to a shoemaker, you know? The queen takes care of a hive, you know? She takes care of a… if it were voluntary, you know?

Centralized Tax Law, Local Authorities, and the Arbitrary Inspector

43:39

Speaker #2: We have this predictability, we have a law of taxation, but we have several tax authorities in each county. It’s not a centralized thing in Bucharest.

Speaker #1: Well yes, well yes, it is. Deconcentrated offices are a form, a sign of centralization, not decentralization.

Speaker #2: If you have in your name… The problem is they are not decentralized, if the city halls had autonomy. The problem is that the same company that had an office there and a headquarters here had a different tax regime. In part it could be deducted like that. Yes. Otherwise, depending on the ANAF inspector who is checking.

Speaker #1: Yes, yes, but that’s arbitrary. That [laughter], that’s exactly the part that’s arbitrary.

Speaker #2: That law… The problem is how the inspector enforces it.

Munteanu: Yes. Well, this is exactly where we’re talking about arbitrariness.

Speaker #1: You’re being eaten by the saints. [laughter] Our assumption when we analyze this is that the law applies. You know? It’s not like we were doing a minimum-salary analysis, so to speak, and look, in a village in Oltenia it doesn’t apply after all. Well, wait a minute. We assumed it applies, you know? We’re analyzing the effects, you know?

[ 45:00 ]

Speaker #2: Yes. Are they… Yes, the little ones? Yes. No, but there is a little autonomy at the mayor’s offices, where they can set some local taxes.

Vague Legal Terms: “Enough So He Doesn’t Starve” and “A Decent Third”

45:08

Speaker #1: Look, when the law says, yes, take this guy enough so he doesn’t starve. This is the text of the law.

Speaker #3: That’s how predictive it is.

Speaker #1: It’s not arbitrary. It’s not arbitrary, because it’s predictable that you can see him starve or not starve. Plus, what that term means, to die of hunger: that he cried, or even died in the act? He was on the verge of dying. Yes, [laughter] but I gave him some biscuits. Yes. Ok.

Speaker #2: “A decent third” is more subjective, right? Than…

Speaker #1: Yes. The inconsequential salary and the decent third. That’s it. [laughter]

Speaker #2: He says he stuck a claw into me.

Munteanu: Good, bitter.

Bending the Law Against the Enemies of Those in Power

45:58

Munteanu: And most of all to predictability, especially in Europe, to say this, sir: against the enemies of the current power you can apply the law however you want. You bend it, you know? You give it a twist and a twist. Hm.

Speaker #2: Actually, you should be out of luck. Mhm.

Rothbard’s Criticism: Predictable Is Not the Same as Good

46:26

Speaker #1: Okay. Do you know what Rothbard’s actual criticism was? Come on, I’ll give you a portrait: of the law being general and, I don’t know what, predictable, you know? The blind man is predictable, but the law is not… bad. It’s bad, even though it’s predictable, you know? Yeah. Well, you would say: “Well, [trained voice] yes, but it’s better that I know.” It is, but it’s not good, you know? It’s not good. [laughter] I don’t know if anyone would have claimed… generality isn’t enough, you know?

Speaker #2: No, but it’s predictability.

Speaker #1: No, it’s just that the idea is that it’s better with them, but it’s not good.

Munteanu: Well, including Kinsella, and he still says that the principles of… Yes, the basis is respect for individual rights and the principle of non-aggression. Predictability is somehow a third space.

Speaker #2: Hayek, when he talked about predictability, was talking from the perspective of an economist. He said that to make your plan you have to reduce the amount of chaos.

Asset Declarations, Girlfriends, and Nicușor Dan

47:28

Speaker #1: But don’t think about… But what did I mean? Come on, say it, and say it [trained voice] to those who have a good account. Yes. Because they don’t want to, because the law says only wives, husbands and wives, must declare their assets, but if you have a girlfriend, she is not obliged to publish her assets when you hold a public office.

Speaker #2: Yes. You see this, you put your life in order accordingly. But she might as well leave with the money.

Speaker #1: That’s right. She can even walk away with your money if you put her name on it. [laughter]

Speaker #2: Yes. The problem is that now they want to return it. To the AUR people or to the PSD people. I understand. Confirm.

Speaker #3: Who?

Speaker #2: Who? [laughter] Yeah. Who? Exactly. Well, the champions saw that Nicușor Dan was getting away with it, this thing with this little girl, with his concubine, or how should I say, his girlfriend. Yes. And then they say we don’t need to change the law because it hasn’t been fair so far, but from now on it will be fair. [sigh] [snore]

Unpredictable Legislation Versus Judge-Discovered Law

48:49

Munteanu: People are not only prevented from deciding how they want their lives to be, but they are prevented from foreseeing the legal effects of their behavior. Yes, yes. And because of that, so this scientific legislation in the spirit of the Enlightenment, created by old and smart and wise people in the Senate and the Chamber of Deputies… they are no longer old, nor smart, nor wise. That’s how unpredictable it is, whereas over there, in that part, when you have a law that is made or discovered by judges, things are much more predictable, because, first, it only applies to the parties who requested judgment in their case, and secondly, if you look at the case law, you see how far back, let’s say, this rule was applied and whether it was good or not.

[ 50:00 ]

Speaker #1: Yes, look, I was thinking about that. Rothbard could say it doesn’t matter; it’s the level of aggression that matters. You know, something can be predictable and be very aggressive, the extermination of an ethnic minority, let’s say, and something can be arbitrary and not be so aggressive. He’s asking for a bribe, you know? Or… Hm.

Women’s Rights: Would Common Law Have Gotten There Without Legislation?

50:18

Speaker #2: “But look, let’s think about this, sir.” And in turn, the girls got married as their parents said, and the judges, if a girl was disobedient, ruled in favor of the parents. Hm. It happened that a judge at one point said: “Well, I don’t think so.” Or because someone central came somewhere and said: “Sir, from now on…” Both, I think, were historical.

Speaker #1: Was both historical? One is that it was both, and I don’t think it was sudden. I mean, it’s nice in movies, when the movie lasts an hour and a half.

Munteanu: The argument, the classic [trained voice] argument, is that legislation gave women the right, and somehow it says that too here in the book. But Kinsella goes on to make the argument that there is no way to prove that the common law, the law of the commons, would not have gotten there at some point if the legislation for it had not been introduced organically.

And here comes the other argument of the pro-legislators, who say, well, yes, including many, many categories of people, including libertarians, including objectivists, including both. The discussion was about property rights, not necessarily about women’s rights, who say, sir, the common law moves too slowly, and then you have to come up with legislation to graft it a little more, to direct it where it went crazy.

Speaker #2: Yes. That’s right.

The Market Argument: A Tortoise Pace or Full Speed Ahead?

52:00

Munteanu: And Kinsella’s answer is like that. First and foremost, you can’t build any argument that a naturally evolving system wouldn’t end up also including women’s rights, and the proximity of radio stations, and it’s an argument about the market.

Speaker #3: Do you want a turtle walk or a full speed walk?

Speaker #1: Well, look, look, Costel, I can say that it went full speed towards communism, it lives longer, and about 20, about 20, 30 million people died. You can go to the good ones, you know? At full speed?

Munteanu: Well, Kinsella’s argument is exactly that: that if the tool used is legislation, you’re not going in the right direction.

Speaker #1: Well, that’s our discussion. Well, yeah, be careful.

Socialists, Liberals, and Conservatives in the 19th Century

53:00

Speaker #1: Where did I read… I think in Hoppe, how many episodes ago did he say that socialists and libertarians in the 19th century were in the same fight against conservatives? At Rothbard. And at Rothbard, right? And that’s history. And both wanted, sir, full speed ahead.

Speaker #2: Hm. Hm. And probably, in one single mention, is that at that time they weren’t libertarians, they were liberals.

Speaker #1: Yes. That’s right. Okay.

Speaker #2: That’s right. And he doesn’t get angry, he’s a loser.

Speaker #1: Yeah, yeah, yeah, [trained voice] yeah. But it seems to me that those guys don’t want to go full speed ahead anymore, you know? It seems to me that they have assimilated the conservative argument, that if I meet Trump and Trump gives me no law and there is no victory in the term, they will give it back. Does that sound right to me? Aha. It’s not like abolishing slavery. “Okay, we abolish it for five minutes, and what the hell did we do?”

Speaker #2: Well, the point here is to live five minutes better. Yeah. So maybe I’ll extend it by 20 minutes.

Speaker #1: Yeah. [trained voice] The point is, maybe there were some liberals, you know? They actually said, “Sir, you should know that these liberals who are more socialists, who want more speed, more, maybe they are right,” you know? I mean, this was happening right in his soul, and he said, “We’re going to eliminate the tax, bro, in 5 minutes. Why are we still sitting here and not…?” [laughter]

It’s clear that Rothbard wanted to create a system by which to delimit conservatives. One argument without which conservatism cannot exist is this gradual evolution, you know? Hm. Abolition of slavery shouldn’t be imposed immediately, I don’t know what shouldn’t be imposed immediately. Except for the revolution of ’89, where they seem to sympathize with “immediately,” you know. But the conservative police wouldn’t have had to go immediately, you know? Yeah, that’s inconsistent, you know?

What Does “Conservative” Mean? Gradualism and Its Limits

54:58

Speaker #3: Okay, so I would say that the word conservative is used incorrectly here, or the word conservative is at least perverted. Conservative would effectively mean to preserve. If there is a conservative who concedes to you, if there is a conservative who concedes to you the idea of gradual change, that’s not conservative, that’s a gradualist.

[ 55:00 ]

Speaker #1: No, no, no, no. I say that’s conservatism. This is what conservatives want: change, but no matter how they were in the 19th century. Be careful, Vali. In the 19th century, they are [conservatives] in Europe; in the 20th century, they are classical liberals in America. You know? Regardless of that, the common thread, that’s it, you know? Yeah.

Speaker #3: I can’t, they can’t keep it gradual either. I can’t stay closed.

Speaker #1: So we wouldn’t, and it’s pretty fair if we’re talking about the right one. I would defend Rothbard by saying that you can’t push the button immediately, that you don’t do that thing effectively, you know? I mean, it doesn’t hold up, it doesn’t last, from the first, cultural. That would be dissolution. Like that. After you’ve done the cultural, yes, apply the… Well, that’s all the argument, but not when you don’t have the cultural, you know?

Education Versus Legislation as Libertarian Strategy

56:11

Munteanu: The observation is that the world is not libertarian, and I think that while you do it culturally, others do it institutionally.

Speaker #1: No. [laughter] Yes. Exactly. While you do it culturally, it actually happens, even if not de jure.

Munteanu: That’s Kinsella’s argument at the end of the chapter, when he says that the role of libertarians should not be to focus on legislation but on education. The strategy discussion. Because when you get to educate, I pray, to spread the values, libertarians even abolish the legislative process.

Would a Libertarian Majority Be Imposing on a Minority?

56:43

Speaker #3: And what is the challenge? If you don’t have libertarian majorities, let’s say, and institute that… let’s say we fake it a little, I’m friends with Tran… and if you had libertarian majorities, I would say it’s opposed to libertarianism to establish legislation by majority force on the minority that does not want it.

Speaker #1: Well, but no, it’s not by force. By definition, it doesn’t take aggression, you know? Well, not the law, even if he doesn’t want to. Be careful, even if he doesn’t want the rule, it’s not aggression, you understand? You only use violence defensively, you know?

Speaker #3: Wait a minute, this is a tough dilemma for me.

Speaker #1: Be careful. If we think we’re right and we put something in a non-aggressive [way], we don’t conquer the world, to leave them alone, but they don’t want to be left alone. We actually want them to be left; they don’t want others to be left.

Speaker #3: Let’s say we play my scenario, let’s say they want the rule or not.

Speaker #1: Yes. Let’s say they won’t reign, and you explain it with heaven and earth: “Oh, I’m not doing you any harm. Look how good it is.” And that guy has a nervous breakdown because he wants more than before, more with… It doesn’t matter. It matters that he’s not right, you know?

Speaker #3: Well, it matters that he’s not right, but me, in the face of great ethics…

Speaker #1: I told you, it’s like punishing a serial killer. They’ll never say…

Speaker #3: I would say no. Well, yes, but that one actually did something provable, while this one is a matter of preference. So you have the minority, let’s say.

Speaker #2: Well, you don’t do anything to him.

Speaker #1: Well, you don’t do anything to him as long as he doesn’t break the rule. When he breaks [trained voice] the rule, when he breaks it, you stop him. Well, no, that’s not aggression. He says: “Well, wait, I’m a Nazi and I have to enter a libertarian world.” Ok, I get it.

“Starting Tomorrow, I Won’t Pay Your Taxes”: Is Imposing Liberty Aggression?

58:39

Speaker #3: I mean, they basically have a system where I want to pay taxes to the state, and Alex comes and says: “Starting tomorrow, I won’t pay your taxes anymore. I’m forcing it on you.” “Oh, well, I wanted to pay.” “Well, go ahead and give it to me.”

Speaker #1: Not even that. I wanted Alexandru to pay. I didn’t want it.

Speaker #3: Well, yes. And then aggression is violated, and I don’t know what.

Speaker #1: It’s not even violated. If he says, “I wanted someone else to pay,” well, you can want it, you’re free to want it, you know? But if you go and take it, you forcefully take the money from another, you fork it, and you stop that one. We attack each other.

Speaker #2: “It’s not important because we gave in, we were too infected by this relativist discourse in which we gave in.” Well, wait, I’m imposing libertarianism, and what if I impose it? I committed an aggression? That’s the relevant question, and the answer is no.

Speaker #3: That’s a pun here. Excuse me.

Speaker #2: Because we say you impose it, but in fact you leave it alone. I mean, you don’t impose it because it has some obligations. So wait, wait, wait. The minority imposes it. He can’t commit a crime, you know?

Speaker #3: Yes, but no. Are you forcing him? See, when you force him, it seems like you’re forcing him to do something. Whereas if you force him, you’re telling him to leave me alone; you force him, you force him.

Speaker #2: Exactly. [laughter] I don’t put it, I impose it. I don’t make him do it, I make him not do it.

Speaker #3: No, but to finish my scenario: basically, those people who want some more state, and you come with the libertarian political majority and you say we’re dissolving this nonsense. Well, you don’t stop them from doing their association, to make them make the same associations if they are non-aggressive.

[ 1:00:00 ]

Speaker #1: Well, no, he said the state is aggressive by definition, you know?

Speaker #3: Oh yes, I’ll stop him. That’s the answer. I’ll stop him from doing his job. Oh, I’m not stopping him from doing something voluntary that they stupidly call a state. Okay, that’s not a state, you know? Yeah. It’s called…

Gradual Change or Shock Therapy? Post-Communist Privatization

1:00:24

Speaker #2: Yes. But about this thing with Mr. Gradual, or should we say Revolutionary, something good. After the revolution, after the ’90s, many communist states said in a week we’ll privatize everything. Romania said no, gradually, gradually, a little bit, so that it is not known.

Speaker #1: Yes, Iliescu was conservative in that sense, you know?

Speaker #2: That’s what I wanted to… And was it better, as Balcerowicz did, to make a law and privatize everything, or was it better to take it slowly, with such a cultural barrier, people not being used to it? [snoring] History has proven who was right, whether Iliescu had it or Balcerowicz had it. Yes, that’s what I meant.

Speaker #3: Where was Balcerowicz from?

Speaker #2: Poland. Yes. Poland. Yes. Shock therapy. Shock therapy. Yes.

Speaker #1: Okay. That’s logical, and there have always been these discussions. How is it better to cut the cancer, on one side or the other? In Poland, the fight against communism lasted about nine years.

Speaker #2: Can you say… I can say it wasn’t like that. Why? After or before? And I can say it wasn’t like that. Yes, but the Romanians were also anti-communist. Let’s say the first pure anti-communist thing, in ’85 in Brașov.

Speaker #1: They are pro now, but back then it was… [laughter] Yes.

Communism Was Imposed by Dictate, and Undone the Same Way

1:01:54

Munteanu: The problem is that we come back to this thing with the law discovered by judges and the law legislated. Hmm. They did not have a law made by judges. The same was true of the communists’ legislated law. So they didn’t interrupt; they used the current tool to cut, sir. Before, it was still… This is how communism emerged, through dictate. Yep. Hm. Through dictate, we take it back and return to the previous situation. Yes.

Whereas if it really was, let’s say these communists didn’t come with a system that would create laws through Parliament, and still relied on these decentralized judges, it was probably the same way it had to go after the revolution. There was no more communism. It was harder. I don’t know how it could be done with… But they could try.

Is Law Created or Discovered? Content Versus Methodology

1:02:59

Speaker #1: They could try. Yeah. Look, American Democrats tend to believe that the law is created, and that’s why you can do something, you can amend the constitution. Conservatives think it’s out there, you know? An objection can be: no matter what it is, you know? It matters what the content is. What do you say? That’s how it comes. “Look, I discovered it.” “And what did you discover?” “Well, I don’t know. These statisms.” “Well, leave me alone.” [laughter]

Munteanu: The content clearly matters, but, at least that’s his argument, the methodology matters too, because if you have tools that legislate, they will legislate.

The Faucet Metaphor: An Institution Built to Make Laws Will Make Laws

1:03:45

Speaker #2: It’s like… Ok. What doesn’t aggress there? What’s there? A faucet that does what? It turns on the water. Well, okay, it’ll turn on the water. If you have a faucet that lets the laws out, they will let the laws out.

Munteanu: Yes. If we have already established that the law compatible with libertarianism is just long enough to occupy five minutes to tell the whole story, it’s clear that an institution whose only purpose in life is to make laws will get bored after those five minutes and will make laws that by definition will no longer be libertarian.

Speaker #1: Yeah, but you can also do it the other way around, you know?

Munteanu: How?

Speaker #1: Well, turn off the tap. [laughter]

Munteanu: The answer is yes. Kinsella’s answer to this is like with those decentralized ones, you follow those. As long as [laughter] there’s a tap there, the next one can open it. You can close it, they can open it. The solution is to not have a tap.

Speaker #2: It’s effective, and it actually says the solution is to get the job done, you know? Yes. And the fight against evil is more effective.

[ 1:05:00 ]

Emergency Ordinances and the Speed of Lawmaking

1:05:01

Speaker #3: They are now struggling, sir. Ours here are still all continental law. Aha. Who legislates laws, sir? Those laws are good. The problem is that now someone has come and makes laws much faster, emergency ordinances, [sigh] and in America, and here, it’s everywhere, this problem. And you can tell him that it no longer passes through the filter of the thinking of the parliamentarians, where we have to sit and think; someone coming from the government, bang, in two days, law, right? So that’s already the speed at which it is created.

Speaker #1: Well, yeah, that’s the argument. It’s the conservative argument, you know? “We’re moving too fast. Wait, take it easy.” It’s not the principle we’re attacking, just the speed at which change is taking place.

Kinsella’s Proposed Limits on Legislation, and Why They Fail

1:05:52

Munteanu: Yes. I don’t know if it’s time to say that Kinsella’s suggestions for how to do this are later in the chapter… you control a faucet, no matter how small.

Speaker #2: I don’t know what you mean.

Munteanu: He says later that he has some suggestions like that, well, instruments, but we’ll talk about them.

Speaker #1: But it seemed to me that in the end he says that they are all useless, including those. I mean, he has demonstrated that many among them were tried and they fail.

Munteanu: Anyway, it’s funny that he went through them, so that some wouldn’t live with the impression that you have to… Yes, you have to go through them, so that… Exactly. Someone comes and says: “It’s not that bad, we have the constitution, or we have oversight mechanisms, and…” Yes. “Or we keep an eye on them.” We keep our proverbial eyes on them.

How Decentralized Legal Systems Work: Jurisdiction, Precedent, and Consent

1:06:55

Munteanu: Okay. How do decentralized systems work? Well, there are limits, we talked about that; there are limits on the decisions of some tribunals, by jurisdiction, by purpose. There is precedent. Precedent is not mandatory, it’s just informative. We’re talking about this, and the same thing. Alex said earlier that a law that is discovered does not apply… or you said, I don’t know… It only applies to the parties concerned, not to the entire population, as is the case with centralized systems based on legislation. And at the level of decentralized tribunals, even the free market can function. The purpose of the tribunal is not to find the law, but to give satisfactory decisions.

Moreover, in those systems, in the libertarian system, or in the private system of… Why does it have to be private? The idea is, why does it have to be private? Because then the people who come to the court agreed beforehand that they would follow the court’s response. Yes. No, no, it has no place, even on the losing party in the trial. Yes. There is no legislative imposition even on the losing party, because they agree beforehand.

Speaker #2: Sir, we’re going to this, and the contractual part.

Munteanu: Exactly. Good. But if these tribunals had legislative power, they would be a state. In short, it would be a state, and would have extra powers given by the market; then we fall into the same methodological sins as if it had legislated, as if it had legislation, because the judges themselves will have legislative power.

Speaker #2: Yes. Basically the mechanism, even if it’s a gang, in the same territory, many judges, if they have the power, the same thing will happen. Yes. Good.

Certainty, Non-Binding Precedent, and Hidden Legislation

1:09:27

Munteanu: A few words about civil codes… that the argument… Good, and the argument, sorry, the argument for predictability, yes, for certainty, is exactly this: that if the law can change from one day to the next and apply to you, it’s clear that the degree of certainty you have about the law is lower than if the law couldn’t change from one day to the next and apply to you as well.

[ 1:10:00 ]

Speaker #2: Yes.

Munteanu: This should apply to you too, and is ensured by the decentralized system of laws. But those do not generate a law; judges generate a precedent, and the precedent can be taken into account, but it is not mandatory to take it into account. It depends on the specifics of the case.

Speaker #2: At the next trial, the fact that the judge set a precedent will only bother you if that precedent becomes binding. If that precedent becomes binding, it’s like legislation. It’s hidden legislation. That obligation is imposed by someone.

Munteanu: Yes.

The Counterintuitive Stability of a Market in Law

1:10:47

Munteanu: I was saying it was kind of a conclusion. It’s counterintuitive that a system that seems [snorts] as chaotic as the free market, applied in the field of courts, actually generates more legislative stability than a centralized system. Moreover, if we give ourselves… if, by the way, we can observe this even in our everyday life, speaking of legislative stability: since Bolojan’s government is no longer allowed to issue emergency ordinances, suddenly we have more legislative stability in this country. So the power was decentralized from his hands.

Parliament’s Size: 300 Versus 432 Members

1:11:42

Speaker #2: How many are there? 420 people.

Munteanu: And by the way, 432 people. Yes.

Speaker #3: How many are in Parliament?

Munteanu: And speaking of which, for the users who are looking at us and having wet dreams about a Parliament of 300 men: 300 men is a more concentrated force than 432. I’m just saying this so that maybe someone can understand, maybe someone will understand.

Speaker #2: More parliamentarians, right? But let them understand: 400 and 700. Plus, a dream is not exactly a dream; the costs of understanding are higher. Part of the charm is that they look at us with a kind of sly look. [laughter] I think they still look like that.

Private Courts Only Act When Parties Come to Them

1:12:20

Speaker #1: Related to these courts and private tribunals: a judge makes a decision related to a [case] only when two people come to him. He doesn’t just sit there and pass judgment like that on the tram, you know? So if, say, no one comes to the judges for 500 years, not even one of the parties complains…

Speaker #2: One of the parties complains like that in court? They both have to come to the private courts.

Speaker #1: That’s right.

Theft, Enforcement Agencies, and When You Need a Judge

1:12:56

Speaker #3: You have to wait, wait, wait, wait, wait. I don’t want to derail you.

Speaker #1: I’m derailing.

Speaker #3: Yeah, but if I steal from you, you go to the agency, like this. The agency says, “We know who he is, we know, we have the evidence that he stole, but we can’t find him.” You can go to the judge and…

Speaker #2: And what will the judge do if we don’t find him? He’ll take his money?

Speaker #1: And what will the judge do if we don’t find him?

Speaker #3: When you find him, he just makes a decision, but he says yes, it’s right.

Speaker #2: Well, when you find him, you can do this thing without a judge, if the thing is yours and it’s in that house.

Speaker #3: Well, maybe it’s not in his house.

Speaker #2: With him alone, if he’s in the field. If he’s in every one of them, in libertarianism you don’t need judgment. You get your hands on that thing, he gets his hands on you, and then you say that basically…

Speaker #3: So I didn’t find it. Okay. “Give me, give me first, give me the compensation,” so you can go to the judge.

Speaker #2: Yes, you can make justice an excuse.

Precedent That Stands for 500 Years

1:14:06

Speaker #1: So. So. So these two come, and if no one complains… it’s not like 500 years… if no one complained in the field of theft, in a certain field, what happened 500 years ago remains as precedent and jurisprudence.

Speaker #2: Yes.

Speaker #1: So that law hasn’t changed in 500 years.

Speaker #2: No. And especially not if it doesn’t create another precedent. A small thing, a small thing: a central legislator doesn’t come to control, to put the curve of the banana in here. But no one complained. “Leave us alone, go away.” Yes.

Speaker #1: And here someone complains, you know? I don’t know, the interest groups, you know that…

Munteanu: Well, that’s the discussion [laughter]; the discussion with the interest groups is a little bit further on.

Civil Codes and Constitutions: Supposedly Stable, Constantly Amended

1:14:50

Munteanu: But now we have reached the Civil Code. The Civil Code is something that theoretically precedes the law. It should be something more stable. That is a difference, it seems, between the Civil Code and the civil law in…

[ 1:15:00 ]

A state in the United States, for example, says that a civil code is a constitution rather than legislation. But, as we know, the United States Constitution, which is as restrictive and bare-bones as possible, was amended I don’t know how many times, including the additions, because initially there were 10 amendments to the Constitution. Now it seems like there are about 18 or 19, I don’t know exactly how many, and there are more on the way. So we have a modification procedure that can finally be done. OK, it’s a bit more difficult, but de facto it has been amended hundreds of thousands of times, with every decision of the Supreme Court of the United States.

Now, if we talk about our legislation and our Constitutional Court, the second round back, something, I don’t know…

Speaker #2: No, no, it doesn’t matter. Ours was already modified, born. Our Constitutional Court effectively gave laws: that one is not allowed to participate, that one is not allowed to participate in elections, things like that, that didn’t exist in the law.

Chile’s Ever-Growing Constitution and Sunset Clauses

1:16:27

Speaker #3: One aspect related to this, one aspect that reminded me: in Chile the constitution changes very often. Mm. It has also been in the antechamber a few times, and it is getting bigger and bigger.

Munteanu: M, it is no longer a book… it is getting bigger and bigger. So, this constitution… this is one of his suggestions, think further: let it sunset, right? Let it expire.

Private Judges, Reputation, and the Demand for Predictability

1:16:50

Munteanu: And in the system with private judges, the fact that you stick to the jurisprudence of the previous cases means that you are good and therefore are preferred by the people around you.

Speaker #1: Let’s talk. Not necessarily because you’re good; you’re preferred by people who want more predictability, you know, if you’re good.

Why Predictability Matters: Uncertainty and Time Preference

1:17:20

Munteanu: And the point is, we’ve talked so much about predictability that we should also say why it is… to avoid the opposite situation of predictability, the situation where you have unpredictability or uncertainty. Yes, because everyone is rationally moved to positions of time preference, more… shorter, bigger. I have a greater time preference; I want immediate results.

Speaker #2: Yes, immediate results.

Munteanu: Greater time preference is driving the world towards consumption instead of leading the world towards production. The economic results speak for themselves. We already live in a world where… which preferences, as much as the difference between… and that’s another thing: the greater the difference in time preference, yes, preference, a man will be willing to take out loans with higher interest rates. High. Hmm.

Yes. Also, the greater the difference between, say, the average time preference and a person’s time preference, big, when you give money with interest, you will want to receive [more], where you will be compensated more. That is, including the one who lends with interest, yes, if he has a greater time preference, he will, for a longer period of time, demand higher interest rates to part with that money for the time being. Hm. Yes.

Speaker #2: Thank you. Exactly.

Legislation, Uncertainty, and Rising Crime: A Passage from Hoppe

1:19:22

Munteanu: Good. This thing has structural effects on the entire economy, and implicitly on the entire organization of society. There’s a quote here from Hoppe; let’s give it in full. So the simple fact of legislation, or the way to legislate democratically, to make it clear that we are talking about this, not about despotisms or other follies, yes, it increases the degree of uncertainty. Instead of being fixed and predictable, the law is becoming increasingly flexible and unpredictable.

[ 1:20:00 ]

Speaker #2: Remember? When in the space of a few months we went from “not raising taxes” to “I would like to raise taxes to break you all.” Yes, some people, you could even say, voted on the promise that they wouldn’t raise taxes, right? Some of them, who would be more naive like that by nature.

Munteanu: Good. What is right or wrong today may change tomorrow. Yes. So the future becomes more uncertain, more at the mercy of chance. Yes. Consequently, all degrees of time preference throughout society will increase. Consumption and short-term orientation are stimulated by such a system, and at the same time respect for all laws will be systematically undermined. As a result, crime will increase, because as long as there is no fixed standard, immutable, I don’t know, not immutable, it is ambulant. Yes. We have no definition of what is right and wrong.

Crime, High Time Preference, and Immigration

1:21:44

Speaker #2: Crime… and then that… but it’s worth emphasizing.

Munteanu: He can try. Yes, I’ve seen this before in Hoppe, sir. Changing the laws probably creates a lack of respect, and the continuation of the argument is that the criminal is the one most optimized for, has the highest time preference, because for him the result is immediate. I committed the crime, I got the result. What exactly was I looking for? It optimizes on this system. You can already see the effects in a country like Britain, where crime is increasing. Yes. When you bring in people with a chronic preference for the short term and you import them into society, you will notice fantastic increases in crime, in all indicators of crime in society.

Speaker #1: If… and from that they have violence.

Speaker #3: What?

Speaker #1: If it came out of that, that’s why they have violence.

Economic Insecurity and Romanians Working Abroad

1:23:03

Munteanu: No, but not [laughter] necessarily, and not necessarily violence. Look, for example, you can say that here in Romania, yes, times of hardship and economic insecurity, yes, and economic uncertainty, produced a population that was more focused on the short term than a population oriented towards a longer production-chain structure. Yes. The moment they opened the gates of Europe, where did the Romanians go in Europe? Well, the Romanians, yes, and the Romanians and the cohabiting nationalities, where did they go? Did they go to work in Europe or to steal in Europe?

Speaker #2: To work. And an important part…

Speaker #1: Well, well, the others were working too. A different kind of work. [laughter]

Speaker #2: I quit stealing, meaning I don’t work anymore. Time preference. I’m doing a… Time preference is important in these elections.

Reverse Causality and Self-Enriching Officials

1:24:10

Speaker #3: And you say that the chaos of the legislature and these things were creating [it]. That’s the argument.

Munteanu: Yes.

Speaker #3: I’m wondering if you don’t also have reverse causality. Time preference leads to the laws, yin and yang, you know, and the system is a system which can enhance itself.

Speaker #2: Someone from Digi had a saying: “Sir, these people have legalized theft, sir.” He was referring to these people from the CCR who set their own salaries, and there’s simply nothing you can do about them. They give themselves pensions, they give themselves salaries, they give themselves free access to all medicines from the funds.

Bruno Leoni’s Economic Argument: Legislation as Central Planning

1:24:55

Munteanu: We’re going to go in quickly and just quickly go through the central planning and calculation argument, Bruno Leoni’s economic theory, and why we’re going to go through it quickly: because in the prelude to this chapter, Kinsella says he no longer agrees with the vast majority of the arguments, that it’s a bit of a stretch. But the idea would be as follows: that Mises… and let’s move on to the fact, based on the fact that, as he says, with information like this, thank you for sharing your information, there can be no central planning. A centralized system of laws is very much like planning. Therefore, good, he takes [it that], therefore, a central planner of laws will not have all the information about the people he wants to represent, or he will not be able to act as a central planner, in the sense that he will give the directives, the laws, that will lead society in a direction to maximize prosperity.

For example, here I can say that I don’t necessarily agree, leaving aside the fact that, yes, maybe a central planner here and there… I agree that a centralized system will contain within itself the seeds of destruction. Yes, that’s the whole argument of this chapter: that a centralized system will grow, will lead to uncontrollable and discretionary legislation anyway, even if it were to depart strictly from libertarian principles. On the other hand, a [trained voice] man is capable of understanding and stipulating what the law should be.

Speaker #2: That saying, even in the book we have Rothbard saying “tat tat tat.” We’ve been exercising since we were a little old.

Representation and the Principle of Unanimity

1:27:23

Munteanu: Good. And the idea with systems, this is where everything is disputed, this is where all the discussions appear: the basis of this so-called representative legislature system. There are two things here. So the argument is that, information being distributed, the representative does not actually represent you, because they cannot have access to all the information. I would say that the representative does not represent you because the principle itself is wrong. It is not that someone says here, sir, participation in a community of 100 people does not generate the same effect as participation in a community of 100,000 people.

And the answer here is that you’re talking about a power difference only if the adopted system is imposed democratically, because if we take it step by step, between two people, yes, what does it matter? Let’s be clear. Yes. So two people can only do business together if they both agree. What is it called when two people agree to do something? Well, the principle is unanimity. Yes. Good. We add one more man to the two men. [trained voice] Yes. If you don’t want to change the principle, the three of them will have to agree. Let’s give it another go. If you don’t want to change the principle of unanimity, the four of them will have to agree. We add one by one, up to 100,000 people. If you don’t want to change the principle, everyone will have to agree. Therefore, any one of them has the same veto power, no matter how many there are.

If you don’t want to change the unanimity principle… The problem is that you, being stupid, say democracy, right? And your principle breaks with three people.

[ 1:30:00 ]

You are stupid for understanding that you can’t have democracy with two people and there you have to have unanimity… Yes, maybe one of the stronger [laughter] of the two of us… but after that you say, “Oh, holy democracy, what can help us, give us light,” and it doesn’t give us that, and that’s why participation actually decreases. Hmm. Not because there are more of them, but because there are more of them and you have democracy. Because, as I just said, if the principle were unanimity, no matter how many there are, the participation of one has the same power.

Bundled Preferences and Granular Agreement

1:30:57

Speaker #2: Yes. And for me, I would add that a lot of people dream of… Well, everyone has an image in their head of how the world should work, and that’s a package. That’s why they dream that all life among those 100,000 people is a bundle of many things, and that veto power would mess up other things when it comes to the contrary. “Well, what do we do, sir?” “We’re not going to do anything.” No, we’re just going to do what we can agree on, because we’re doing it together. No. And otherwise you are free to do it separately, to the extent you can.

Munteanu: The basic idea I want to emphasize here is that people understand how to go about their little business in their daily lives, and it seems very natural and normal to them. “Sir, that’s my little thing. I like to add more salt,” nonsense like that. Yes, but at a higher level they are afraid to think that interests can be granular, and to agree with the 100,000 on one subject, on another one not. Another one yes, another one not.

Speaker #2: Come back and buy them, come back and buy them. “But no, well, but you won’t have sewage, you won’t have…” Yes. “You won’t have streets, you won’t have…” How to force them, I mean. Ok. Good. So this, this, this is the result. Yes. We’ve reached the level that… Yes. If the world wants it, it will. “Well, a bridge won’t be built.” If the world wants it, it will be built. It won’t be built. And all that.

The Hidden Costs of Democracy: Interest Groups and Bribed Legislators

1:32:43

Munteanu: Somehow, the byproduct of the democratic system of doing things is that the democratic system, as the effects well show… the diagnosis is that the democratic system comes with a very large cost disparity. Yes. The costs that you have to bear. We talked about it before in David Friedman’s The Machinery of Freedom: the costs that you have to impose on yourself to be up to date with all legislative initiatives, not to mention the fact that even if you are aware of it, you still can’t stop it.

That, of course… For example, a parliamentarian may be bought by some to promote a group of interests. Yes. They can consolidate an interest group behind the legislative process, which can extract some benefits for which the costs of bribing a set of parliamentarians to promote the law are minor compared to the benefits. And you, who agree to keep an eye on them and see what they do, and woe is me how they treat you… Brother, take the million out of your pocket to make a counteroffer.

Speaker #2: Well, it’s not that the laws are being broken, and it’s very good to sue. Which law? The ones they made. The ones against which they are immune, in one of the cases.

Munteanu: Yes, exactly.

America at 250: How Has “Keeping an Eye on Them” Worked Out?

1:34:24

Speaker #2: How do you think it’s going like this, after about 200 years of having America?

Munteanu: Yes. Because America just celebrated its 250th anniversary. After 250 years of existence, how does this experiment of keeping an eye on them seem to be going?

Speaker #2: 40 trillion debt. Yes, yes. We have it for new… for the unborn.

Speaker #1: Then you have… Well yeah. [laughter] Well yeah. I ask them eye to eye.

[ 1:35:00 ]

Speaker #3: I liked it. I say we could divide it in half by 13.

Munteanu: Yes. Let’s stop him.

Speaker #3: Well, I want to. I would have insisted on planning this too, because I don’t like it.

Munteanu: Well, we can take it up again next time, or insist on it. We still have a little time.

Language, Law, and Money as Products of the Free Market

1:35:17

Speaker #3: I like that Hayek said this earlier. He said that language and laws and money must, in his opinion and mine, be determined by the free market, not imposed, and intuitively people can see it, for example, in spoken language, right? When someone comes and changes your arbitrariness… Look, there are a bunch of young people using millions…

Speaker #1: No, you keep talking. [laughter] That’s not okay. Keep talking.

Speaker #3: La la la la la. “They/them.” “They/them.” Yes. So you have word constraints; you definitely have to use something, and things don’t actually happen the way Kinsella says. That’s why it wasn’t successful, Esperanto. Some things have to happen between people. Language: no matter how the Romanian Academy comes and says what is correct, the people will speak as they want. The important thing is that they understand each other when they communicate things.

And here, for example, people’s intuition is that the price is formed by the market. That they can understand. They say, yes, supply and demand. Ok, we get it. If you say the free market is a rule of justice, they’ll say, “Well, how? So it’s going to fluctuate like market prices?” And what am I saying that’s counterintuitive? What are people asking for in the justice market? Predictability. Well, so what’s it going to produce? It’s going to produce predictability. People are going to be satisfied, as with market prices. Why do prices exist? Because people are satisfied. Otherwise there would be no prices. There would be no buying, no selling. There was still some cake.

Munteanu: Yes. Ok. Thank you.

Why Esperanto Failed

1:37:22

Munteanu: Okay, I have a separate argument for Esperanto. Esperanto failed because it was anyway somehow an attempt at [resolving] the Anglo-French conflict, a bad one, because the answer to the Anglo-French conflict is not to make everyone learn from scratch the same language, which doesn’t come naturally anyway, because it has influences from all the languages of the world except for Asian ones.

The major problem at the time was that Esperanto didn’t address it anyway, because the largest non-English-speaking population is in Asia. Yes. And Esperanto did not even take the principles of grammar and ideas as they are expressed in Asian peoples. Asian language structures are not present in Esperanto, and therefore the answer there is that the variant of minimum effort assumed was for the rest of the world to learn English, not the other way around. And that’s what happened. The devil didn’t even learn Esperanto, and the adoption of English increased all over the world. We didn’t need a hopeless case; we already had one.

Sign-Off

1:38:58

Munteanu: For Costel Stăvarache, Mari Berceanu, Alex Chiriac, I was Munteanu, and we say goodbye. Get ready, the crisis is coming.