About ten years ago, the Belgian philosopher of law Frank van Dun published a paper entitled “Concepts of Order.” In that paper he gives, among much else, an account of what he calls the convivial order. In this order, “people live together regardless of their membership, status, position, role or function in any, let alone the same, society.” It appeared in a book “Ordered Anarchy: Jasay and His Surroundings,” published in 2007 as a tribute to Anthony de Jasay. It has been preserved on the Internet on Anthony Flood’s website here .
Around the same time, the German-American libertarian philosopher Hans-Hermann Hoppe published a paper, “The Idea of a Private Law Society” . That paper outlines some of the institutions, which might maintain order and justice in societies without political states.
Recently, I re-read Frank van Dun’s work in this area, and I find it seminal. I was surprised and rather disappointed to find no evidence of anyone having tried to build on his framework in the intervening decade or so. So today, I’ll try to build on the theoretical ideas of Frank van Dun and the practical suggestions of Hans-Hermann Hoppe. I’m going to sketch a picture of how people might be able to live together, and resolve their disputes, without a state or a “sovereign.”
Frank van Dun’s ideas
I’ll give, first, a brief summary of Frank van Dun’s paper and the message I took home from it.
In the first part of the paper, he considers the causes of, and potential cures for, interpersonal conflict. He identifies four strategies for minimizing such conflict. Two of these, Unity and Consensus, he labels as political strategies. The others, Abundance and Property, are economic.
There’s much that can be said about these strategies. In particular, it’s questionable which of them, or what combinations of them, can be effective in the long run. However, van Dun favours the Property approach, on the grounds that it is the least demanding. He observes that “the property-solution appears to require no more than an adequate organization of self-defence.” And he says: “In so far as people respect each other’s property, there is order and justice; in so far as they do not respect it, there is disorder and injustice. Indeed, justice is respect for the natural order, i.e. the natural law, of the human world. Thus, justice requires human persons not only to respect other human persons but also their rights to the extent that these do not upset the natural law nor result from an infringement of it.”
In the second part of the paper, he introduces the convivial order, which he equates to the classical liberal concept of natural law. Later, he relates it also to John Locke’s state of nature, which, Locke says, is “a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature. ”
Frank van Dun uses the word convivial in its literal meaning from the Latin, living together (samenleving in Dutch), as opposed to forming a society (maatschappij). Happily, this word in English has also a secondary meaning, of feasting in good company. So, my take on his phrase convivial order is that it is an order, in which people live together well.
He calls dealings between people convivial if they “conform to the patterns (or laws) of friendly exchange among independent persons.” He says that the laws of conviviality “must be discovered; they need not be invented.” (I myself would go further, and say that they cannot be invented.)
He contrasts ius with lex, the justice of the convivial order with the enforcement of obedience that is characteristic of social or “legal” orders. And he says: “The ius-based order of conviviality is in its principles the same always and everywhere.” Further, he says: “The fact that some people are more prominent or influential than others does not entail any difference in their status under the laws of conviviality.” (Nor – in my view, at least – do race, gender, place of birth or residence, religion, sexual orientation and the like make any such difference. In the convivial order, people are to be judged only by what they do, not by who they are). Therefore, in the convivial order, all are morally equal. Or, as I’ve put it elsewhere: What is right for one to do, is right for another to do under similar circumstances, and vice versa.
He also says: “In a convivial order… people appear only as themselves, doing whatever they do under their own personal responsibility. There is nothing like a social responsibility in the convivial order.” I find this to be a key point. And it comes about, because the convivial order is more primitive (or primary) than social orders. Indeed, the convivial order can exist even prior to, or in the absence of, any lex-based societies.
He gives some examples of unconvivial behaviour: “physical intimidation and threats, lies and deliberately misleading utterances, and the like.” And he says: “One who engages in such things places himself outside the law… by failing to deal with another as a free and equal person.”
In the third part of the paper, he discusses the convivial order in relation to societies. At the outset, he says: “The convivial order requires no social organization.” He says: “Although societies can be formed and operated on principles that are compatible with the convivial order, social orders are not necessarily compatible with the convivial order.” And he says: “In justice, withholding the benefits of membership is the only proper way in which to enforce social rules and regulations. The ultimate sanction is expulsion…”
Hans-Hermann Hoppe’s ideas
Hans-Hermann Hoppe, too, begins with property. He gives a fairly standard libertarian defence of property. He traces the (only) just means of acquiring property, from the right to the fruits of one’s labours, through original appropriation, productivity and voluntary trade. (Though he doesn’t go as far as I do; for me, all justly acquired property represents part of someone’s life, that was used up in acquiring the property. And thus, property is life; and to take away justly earned property is to take a part of the life of the person who earned it.)
He then discusses a major error of classical liberalism, its acceptance of the necessity of a state. And he shows how the error has been compounded by the sham of “liberal” democracy.
He develops his idea of private law societies in several stages. First, a society without a political state, and in which there is only one set of laws; that is to say, private law. Second, freely financed and competing private protection agencies. Third, a society in which the state has been replaced by these private protection agencies. And fourth, a development of the third, in which in addition there are voluntary societies, each with its own code of law.
He goes on to outline some of the institutions likely to arise in private law societies. He identifies three such. One, insurance companies. Two, police and detective agencies. And three, independent, external arbitrators and arbitration agencies.
The convivial animal
From here on, the ideas in this essay, except where ascribed to either van Dun or Hoppe, are my own responsibility.
Long ago, Aristotle described Man as “a political animal.” What he meant was that humans naturally form communities at various levels, such as families, villages and cities. At the time he wrote, the most evolved type of community was the Greek city state or polis; hence the word “political.” This description has been the subject of much controversy.
Aristotle thought that the city state, perhaps because of its claims to self-sufficiency, was “prior by nature” to (or, in my wording, “more primitive than”) the households and individuals in it. I can’t agree with this. For me, the fundamental social group is the family. For the family is the smallest social unit, which can exist indefinitely. But the fundamental unit of society – that is to say, the primary and original unit, from which all societies are built – is, and can only be, the individual. I wonder why Aristotle didn’t ask himself questions like: Before the first city state, what was the unit of social organization? And: City states cannot exist without families and individuals, so how can the city state be prior by nature to the family or to the individual?
The city state in which Aristotle lived was the highest developed form of human society up to that time. But he seems to have been blinded by this into believing that the city state was the be all and end all of social organization. And so, for him, the state was more important than the household, the family or the individual. Only in a city state, he thought, could people live their lives to the full. And anyone, who was not part of a city state, was an outcast and an outlaw.
In thoughts such as these, he was probably following his teacher Plato. For Plato’s political schemes are noted for their elevation of the state above the individuals who inhabit it, and of the rulers (“guardians”) and their hangers-on (“auxiliaries”) above the rest of the people.
My take, however, is quite the opposite. In my view, Man is not a political animal, but a convivial animal. It’s in human nature to live together. Part of our nature is to build societies, indeed; but those societies are not “prior by nature” to the family or to the individual. For me, it is the convivial nature of human beings which enables us to build the societies, including families, households and (formerly) city states, which can help us live to the full. Societies are defined by the individuals who agree to form them, not individuals by the societies they live in.
And so, my aim today is to try to outline a structure of relations between people, which can enable convivial individuals to live, and to live well, in order and justice.
The laws of conviviality
Frank van Dun writes in his paper about the laws of conviviality, and gives some examples. But he doesn’t try to list them. To do so is a formidable task. But it’s a task I myself have already attempted, most fully in a paper titled “Rights and Obligations” .
My approach is as follows. For every valid or claimed “human right,” there is an ethical obligation, and vice versa. For example, a right not to have x done to you maps to the obligation, “Don’t do x.” Now take a list of generally accepted, or reasonably proposed, “human rights” and obligations. Remove the misguided “rights,” such as social security and “free” education, which can’t be implemented without violating the rights of others. Remove the putative obligations, which are no more than the customs of a particular society. Remove also those that apply only to those who have agreed to take on a particular responsibility, such as marriage. We are left with just the general rights and obligations, which are common to all human beings. Now convert those, which are expressed as rights, to the corresponding obligations. Et voilà, we have our list!
Of course, this is hard to do, and I can’t claim that my list is in any sense “right.” (It’s certainly incomplete). It might be better to convene a quorum of ten or a dozen convivial and ethically expert greybeards, and have them (us) agree on a detailed list of the laws of conviviality. But, broadly speaking, I’d expect that any such list would include elements like the following:
- To be peaceful unless attacked. Not to commit, to promote or to support aggressions, physical or otherwise, against innocent people.
- To respect others’ rights, such as life (in the sense of not being murdered), property, privacy and security of person.
- To uphold a general presumption of freedom of action, absent any valid constraining factors.
- To respect others’ freedoms, such as freedom of speech and association, freedom of movement (subject to others’ property rights, but without any “encirclement” that would prevent people from moving or from receiving visitors), freedom to marry (or not) and freedom from compulsion to belong to particular associations.
- To accept responsibility for the consequences to others of your willed or irresponsible conduct.
- To compensate those you unjustly harm.
- If you have children, to accept responsibility for bringing them up and educating them.
- To treat other convivial people in good faith, without lies, deceit, fearmongering or other dishonesty.
- To strive to be independent, and not willingly to let yourself become a drain on others.
- To strive to keep to your side of any contracts you voluntarily enter into.
Convivial, Unconvivial, Disconvivial
A convivial act is one in accord with the laws of conviviality. A person, who does only convivial acts, is a convivial person. (Or would be, if such a perfect individual existed).
An unconvivial act is one which breaks the laws of conviviality. However, an unconvivial act doesn’t necessarily make the person who does it into an unconvivial person. Firstly, because in our daily lives, we often do things that, strictly speaking, are unconvivial in some small way. But we do them, not because we want to harm anyone, but only because the costs to us of not doing them are far greater than the costs, to those affected by them, of us doing them. If we are to be convivial, however, we must be willing to allow others similar latitude in return. An example is: “I’ll accept a reasonable amount of noise from your ghetto-blaster, if you’ll accept a reasonable amount of exhaust from my car.” I call this convivial tolerance.
Some unconvivial acts, though, do have effects on others sizable enough to merit offsetting. In such situations, and in accord with common sense, convivial people should require the perpetrator to provide restitution or compensation to the victim, usually by means of a property or financial transfer. Once this has been done, and if the act was free of mind-states such as malice or irresponsibility beyond the bounds of reason, then the perpetrator can be re-admitted to the convivial order. I’ll give the name convivials (or convivial people) to those who, by and large, obey the laws of conviviality, and do not let themselves slip out of the convivial order.
However, persistently repeated harmful acts, and acts fuelled by malice or unreasonability, are worse than merely unconvivial. The word I’ll use for these acts is disconvivial. And by extension, I call those that perform disconvivial acts disconvivials.
In particular, those that seek to harm or inconvenience other people, or to violate their rights or restrict their freedoms, are disconvivials. As are those that lie, or try to deceive or to suppress the truth, about matters affecting others. Those that seek to create or to amplify problems for others. Those that promote or support aggressive wars, re-distributory taxes or other political policies that harm innocent people. And those that try to disclaim responsibility for damage they cause, or to set themselves above the laws of the convivial order. Including, I must say, most of today’s politicians, many state functionaries, many in the media and some big company bosses.
The convivial community
Convivial people do not constitute a society. They have no president or chairman, no officials and no goals as a group. However, they do form a community – as Frank van Dun describes it, “a categorization of people with some common property or relation.” And this community is bound together, convivial to fellow convivial, by the shared property of conviviality.
Disconvivials, on the other hand, are both a drain on, and a danger to, convivial people. They fail to behave as our fellow human beings. By their conduct, they show that they are not fit to associate with convivial people. And since the convivial order is more primitive than any social order, are we convivials not justified in shunning the disconvivials, and seeking to exclude them from our societies? And are we not justified in withdrawing from, and distancing ourselves as far as we can from, those societies in which disconvivials have control or significant power? Including pressure groups, political parties and states?
The guarded convivial order
The convivial order is vulnerable, as Frank van Dun says, to aggression and coercion. It’s also vulnerable to the misleading or browbeating of people through lies, deceit or fear. So, how might we seek to secure it?
Here’s my vision of what I call the guarded convivial order. In such an order, convivial individuals each do what they see as necessary to preserve the order. In the process, they construct a form of governance; but one which has no central point at which power can collect.
Is there a need for a legislative?
I start by assuming that our quorum of greybeards has already done its work, and done it well. That is to say, we have the laws of conviviality written down, clearly, succinctly and as completely as possible. They are freely available to the general public. And many convivial people know them, understand them, and agree that they are fair and just.
I can think of only two situations, in which changes or additions to the laws of conviviality might be necessary, and our greybeards might need to reconvene. First, if new knowledge becomes available, at the philosophical level, on the right ways for convivial people to behave towards each other. That’s very rare. And second, if new, unprecedented situations arise (for example, because of new technologies) which were not considered by the original quorum. Almost as rare.
So, there’s no reason for our greybeards to revise or extend their work on a regular basis. Otherwise put, the convivial order requires no legislative. Indeed, to avoid any temptation to invent new “laws,” the convivial order must not have a sitting legislative (or even a standing one). And it should be a long and complex process, requiring the consent of those affected, to make any change to the laws of conviviality.
The guarded convivial order must provide a way for individuals to bring those, whom they suspect of significant breaches of the laws of conviviality, to justice. Thus, it does require an executive in some form. And because in the convivial order everyone is morally equal, it follows that everyone has the right to bring suspected offenders to justice. In the guarded convivial order, everyone is part of the executive. This is hardly rocket science; for the idea of the “citizen’s arrest” goes back to Anglo-Saxon times. And, as John Locke put it : “For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.”
Such a right requires, as is guaranteed by the laws of conviviality, that every convivial individual must have means of self defence. In fact, it requires more. Every convivial individual must have access to means to restrain any suspect or suspects of a breach of conviviality, even if physically stronger than himself, for a limited period and for the sole purpose of bringing them to justice. I won’t détour here on to the subject of guns. At the risk of sounding science-fictional, I’m thinking more along the lines of robots with the ability to physically restrain people without causing them any actual damage. And they might become even more effective if combined with a future system of personal transport.
Absent such fantasticalities, however, we are driven to more prosaic solutions. So, here enter the first of Hoppe’s institutions of private law societies: police. What a little old lady can’t do without a Smith and Wesson, a private police society may well be able to do by dint of training and teamwork. Those not confident in their own abilities as arresters can delegate the job to their chosen police society, in exchange for a fee or subscription. It’s important to note, though, that these are not state police. They have no moral privileges that our little old lady does not. They may not, within the laws of conviviality, do anything she may not do.
Associated with these are Hoppe’s detective agencies. Their function is – at various stages in the case, from initial arrest through to trial – to investigate the facts, and prepare objective summaries of one or both sides of the case, which can be put before an arbitrator. They may operate either on behalf of the victim or victims, or of the accused, or be sub-contracted by the arbitrator himself.
In the guarded convivial order, the roles of judges and magistrates in today’s legal systems are taken by Hoppe’s arbitration societies. In many ways, though, their jobs will be easier than those of today’s judges and magistrates. For, first, the laws of conviviality are simpler and clearer than the tangles of, mostly bad, “laws” made by generations of conniving politicians. And second, the judgement process, having no political aspect at all, will be far more objective than today.
In principle (and to a large extent in practice), any two arbitrators, given the same case, will arrive at the same conclusion. Furthermore, arbitrators must be required to publish their decisions, the factual statements on which they were based, and the reasoning that led to them; and to make these freely available to all. This enables their verdicts to be checked by independent third parties. And these third parties include what I call “quality reporters”  – the free and objective replacements for today’s muzzled, politicized and biased press and media.
Restitution and compensation
The primary function of the arbitrator is to determine, from the facts of the case, what if any restitution (and compensation too, if full restitution isn’t feasible or sufficient) is to be provided. In many cases, the arbitrator will order the perpetrator (or perpetrators) of a breach of conviviality to make a payment to the victim (or victims). The terms and conditions, under which the payment is to be made, are included in the judgement.
The arbitrator has no power to enforce the restitution or compensation he has ordered. So, it’s possible that the perpetrator may refuse to make the payment, or may default on it for other reasons. At this point, an institution Hoppe doesn’t mention comes into play: the bailiffs.
Here’s what the bailiffs do. First, they advance to the victim the compensation he is owed. And second, they take on the burden of recovering the debt. For this purpose, in addition to the compensation awarded and the arbitrator’s own costs, an insurance premium is added to the debt to cover the possibility of default. If they can’t recover the debt, they go back to an arbitrator – preferably, a different one – for further action.
From the point of view of a victim, there are two advantages to this. First, he receives the compensation he is owed as soon as is practically possible. And second, he need take no part in the process of recovering the debt. However, the victim must have the option to bypass this procedure. He can either collect the debt himself, or if he so wishes, forgo it.
Libertarian theories of justice usually stop at (or before) this point. They do not take account of situations where the damage intended is far greater than the damage actually caused. (The example I like to use is the incompetent terrorist, who plants in a public place a bomb that fails to go off). They also fail to cope with situations, such as a perpetrator refusing to pay compensation ordered, which in today’s legal systems are dealt with through devices like “contempt of court.”
In such cases, common sense tells us that the perpetrators deserve harsher penalties than simply those dictated by restitution or compensation. Such acts are equivalent, in the convivial order, to crimes in today’s legal systems. Thus, in the guarded convivial order, there must be available some equivalent of a “criminal law” penalty. But how can we impose such a penalty in practice, given that everyone must have the right to impose it?
Fortunately, Frank van Dun already answered this question, when he said, of convivial justice: “The ultimate sanction is expulsion.” Now, the community of convivial people isn’t a society; it has no membership from which to expel anyone. But people as individuals can, if they wish, withhold the benefits of their conviviality from those that, in their considered opinion, don’t deserve it. And so, they can ostracize those that breach the convivial order. And the level of ostracism can vary, according to how many are willing to take part in it, and how strongly they feel about the matter.
I envisage that, if an arbitrator finds that further penalty is warranted beyond restitution and compensation, he can issue a “card” along with his judgement. Perhaps there might be a three-card system. A green card is a warning. It is a suggestion that convivial people might like to consider ostracizing the perpetrator. A yellow card goes further; it recommends that convivial people should ostracize the perpetrator, if they come across him. And a red card intimates that not only should convivial people withdraw all contact from the perpetrator, but they should consider also ostracizing those that associate with him.
Of course, there need to be safeguards. We can’t have people unlucky enough to look like Tony Blair being rejected by everyone just because Tony Blair has received a much deserved red card. So there needs to be, at least, biometric information published along with judgements, and people will need means to check whether an individual they meet is, or is not, subject to a card.
Furthermore, cards will have a time limit. They will be annulled after a period specified by the arbitrator, if the individual does not commit any more disconvivial acts in the meantime.
Some individuals are a danger to others if allowed to roam freely among them. To deal with this situation in the guarded convivial order, some form of protective custody is necessary.
Such custody, I think, can only be voluntary. To an individual clearly dangerous to others, the arbitrator could, I suggest, offer two options; a more serious card without custody, or a less serious card (or no card at all) with custody. I doubt that many, given the choice between a straight red card and a green card with a period of protective custody, would choose the red!
Importantly, this custody will not be punitive in any way; though, of course, the individual is required to pay for it. And in particular, it will not prevent the individual in custody from receiving visitors, and it will seek to avoid placing any restriction on his ability to earn. He probably has, after all, a debt to pay off.
As Hoppe says, unfair or biased arbitrators would lose customers quickly. So much so, that I expect that arbitrators, like other businesses, will carry out extensive quality controls before publishing their judgements. However, if a bad judgement has been made, even sacking the judge doesn’t help the victim of that bad judgement. Thus, there must be an appeal procedure.
I expect that there will probably grow up a market of “re-arbitrators,” who review and carry out quality controls on cases already judged. They might work on behalf of the original victim, or the perpetrator, or – most likely – a third party such as an insurance company. If successful, they would be able to claim damages for their client against the original arbitrator.
In contrast to the state, there can be no “final court of appeal.” Instead, there will be a hard limit on the number of times any case could go to re-arbitration. I suggest it might be two.
As in Hoppe’s vision, insurance companies will compete to provide protection services. I envisage them as a “one-stop shop” for police, detective work and access to arbitration, as well as insurance against no-fault accidents. And they agree in advance with other insurers how to choose which arbitrator is to judge disputes between their respective clients.
I envisage that these insurers will charge their clients by subscription, probably yearly or monthly. As with car insurers, the price will vary according to the size of the risk insured against, where the client lives, and his level of no-claim bonus. Most people will take out such subscriptions. Nevertheless, some highly independent people (self-insurers) may choose to do their own police or detective work or both. Or, perhaps, to go directly to arbitrators or re-arbitrators for their services.
Societies in the convivial order
In the convivial order, individuals may form or join societies as they wish. Flower arranging societies, musical ensembles, football clubs, boxing clubs, religious groups, business companies, lifestyle communes, insurance societies, arbitration societies, police societies and many more. As Frank van Dun points out, “it makes sense to personify societies and to regard them as artificial or conventional persons defined by their constitution and social decision-rules.” Membership of such societies is signified by a contract between the individual member and the society. And leaving a society is always possible, even if it may involve a pre-agreed forfeit.
Each of these societies has its own rules, which may sometimes vary from the laws of conviviality. And, as Hoppe suggests, these variations can give rise to competing codes of law.
For example, the Catholic Canon Law Society might have an additional rule, which prohibits its members from performing or undergoing abortions. And a boxing club might waive the responsibility of its members for injuries caused to other members during training or boxing matches, provided of course that specified safety precautions are taken. But there must be a general expectation that any such variations, adopted by particular societies, are kept to the minimum necessary.
Further, these variations only apply to dealings between members of the society. Dealings between individuals who aren’t co-members of any one society (or weren’t, at the time of the dealing) are to be governed entirely by the laws of conviviality.
The order I’ve sketched, which I call the guarded convivial order, bears in many of its institutions a strong resemblance to existing systems of law and justice. At least, when those systems are operated honestly. However, there are some major differences between the guarded convivial order and politicized legal systems.
- The guarded convivial order has no state and no sovereign. There are no morally privileged individuals or classes, and there is no central point at which power can collect.
- The laws of conviviality are simple and clear enough to be known, understood, and accepted as just and fair, by most if not all convivial people.
- There is no legislative. To change the laws of conviviality is a long, complex and consensual process.
- Judgements are as objective as possible. The main remedies are restitution and compensation.
- Punishments for disconvivial (criminal) acts take the form of ostracism, with protective custody as a voluntary alternative where needed.
- There is a simple appeal procedure, with no requirement for any ultimate “authority.”
- Individual societies may have their own rules which, while they must be based on the laws of conviviality, may vary as required. But dealings with non-members must always be governed by the laws of conviviality alone.
 Second Treatise of Government, §4.
 Second Treatise of Government, §7.
 See section 19 in https://thelibertarianalliance.com/2015/07/12/a-blueprint-for-human-civilization/