A Robinson Crusoe-Based Sociology of Law
An essay by Hans-Hermann Hoppe explains that for Robinson Crusoe, an isolated castaway, “the question concerning rules of orderly human conduct,” of social cooperation, “simply not arise,” but when “Friday, arrives on the island,” Crusoe, for the first time, must interact with others, either competing or cooperating for scarce resources.
As conflict is possible, they need to maximize their interactions’ efficiency, meaning they must act rationally to survive and not deplete their scarce resources, for which they have two possibilities: either come into direct conflict, a primitive war caused by scarcity, or cooperate to maximize their use of the few resources they share.
David Dürr theorizes this potential conflict is the first legal source for Friday’s presence on Crusoe’s island, threatening with scarcity, is “a dynamic phenomenon … a world in movement and in change,” of which law as a “side effect” is “articulated within a conflict of colliding and therefore incompatible interests,” emerging “under certain situations” as “some reaction, some need that appears if there is a conflict to be solved.”
Using Hoppe’s argumentation ethics, both Crusoe and Friday are capable for rational action guided by subjectively valued needs, so they can rationally derive property rights from their bodily self-possession, meaning there may be some symbolical arrangement for land or resources division, determining objective links over goods or places to maximize and govern through rules their interaction without affecting the other’s property rights, looking to avoid what would be certain conflict without them.
Moreover, according to Ludwig von Mises,
human action is purposeful behavior … will put into operation and transformed into an agency … aiming at ends and goals … the ego’s meaningful response to stimuli and to the conditions of its environment … a person’s conscious adjustment to the state of the universe that determines his life.
This proves that such an arrangement between Crusoe and Friday has a clear objective: to avoid conflicts in which they would be involved otherwise.
Michaël Bauwens develops a similar idea on the origin of rights as “the existential situation that gives rise to an inquiry into the nature of rights and of law, is a conflict between at least two persons,” where Crusoe and Friday’s arrangement to solve their argument creates a mutual normative statement, based on their recognition of reasonability to agree without the need to engage in violence.
They could argue for different solutions, each trying to maximize their respective advantage, leading to precontractual arrangements as defined in contract theory where an agreement is the mutual assent manifested by two or more persons and a bargain is an agreement to exchange promises or conducts, but strictly speaking, a contract is “an agreement between private parties creating mutual obligations enforceable by law,” whose basic elements required for its legal enforcement are “mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.”
The validity of offer and acceptance and the legality of the contract itself could be discussed within a purely free-market framework, but if the agreement cannot be enforced, it could not be a contract, per se, but that could also be disputed according to international relations theory, where states behave as individual parties, signing treaties without anyone to enforce them.
According to the Realist School, a number of nonlegal
Article from Mises Wire