There are three questions that must be answered by any supporter of anarcho-capitalism, one per each branch of the government to be dissolved and replaced by a private solution.
1) How do I know what is or is not lawful for me to do? According to what procedure am I to be guided to behave properly? Rothbard’s answer is: use the natural law. To the question, “What is the natural law?” Rothbard replies: “To ask what is man’s nature is to invite the answer. Go thou and study and find out!” (The Ethics of Liberty, 10) But now we are entitled to ask: is the natural law fully sufficient to discover (not “make”) and codify the entirety of the human law? Rothbard seems to think so; “universal laws, locally enforced” is his phrase. But consider the following situation: I am playing loud music late at night. My neighbor is upset and calls the police. Who, according to natural law, must shut up, me or my neighbor? (This is the sort of problem that “law and economics” enjoys posing.) Further, is there any discretion or must the law be the same everywhere? Can custom and common law have any sway whatsoever? In a footnote on p. 17 Rothbard writes:
[Henry] Hazlitt’s reaction to my own brief discussion of the legal norms essential to any free-market economy… was a curious one. While critical of blind adherence to common law in other writers, Hazlitt could only react in puzzlement to my approach; calling it “abstract doctrinaire logic” and “extreme a priorism,” he chided me for “trying to substitute his own instant jurisprudence for the common law principles built up through generations of human experience.” It is curious that Hazlitt feels common law to be inferior to arbitrary majority will, and yet to be superior to human reason!
Rothbard then agrees with Aquinas who says that “the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature… Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” (ST, II-I, 95, 2)
2) What authority do judicial decisions obeyed by other people have on me under anarchy? Why must I respect the pronouncements of the (private) courts, no matter how high or dignified? Should there be a system of courts which will interpret the natural law at all, or is everyone free to interpret it himself? (Rothbard likes the second alternative:
Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to “take the law into his own hands”? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense. In the libertarian, purely free-market society. however, the victim will generally find it more convenient to entrust the task to the police and court agencies.” (90))
3) How can a weaker protection agency defend its clients against a stronger agency? Suppose we have a society consisting of 11 people. 4 of them use agency A; 2, agency B; 3, C; and 2, D. Before we had agencies, there were 11 people existing in the state of anarchy doing what each thinks is best in his own eyes. Now that we add agencies into the mix, we have 4 agencies doing exactly the same, namely, what each thinks is best in the eyes of its own owner. There seems to be no difference at all. How does the addition of protection agencies solve the enforcement problem of anarcho-capitalism?
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I never liked Rothbard’s appeal to “natural law.” It’s one thing to conclude from pure abstract reasoning that individually owned property is suited to human nature; it’s another to determine the details of how ownership is to be established, what has to be done to make other people aware that a thing is owned, what penalties are due for violating ownership, and so on. One might compare the pure abstract principles of Newtonian mechanics with the painfully difficult calculations needed to build a bridge, an aircraft body, or a steam engine—or the frequent resort to trial and error.
One might compare common law to rule-of-thumb architecture and engineering. For a long, long time, scientific theory and engineering had nothing to say to each other. The beginning of valid scientific analysis of engineering problems was Newtonian mechanics of projectiles, followed by thermodynamics of steam engines; the first technology that followed from, rather than preceding, the scientific theory was radio, based on Maxwell’s equations. And about the same time, economics was getting onto a scientific footing that enabled it to say something useful about legal institutions. But it took massively parallel computers to enable the a priori determination of how machines would work, and we don’t have computers that can simulate legal conflicts—so resolving legal cases is still going to take some rule of thumb.
And in any case, Newton didn’t show that traditionally designed bridges wouldn’t hold up a load, or traditionally designed ships wouldn’t float. They worked because they were developed by people who had to function in the real world. Common law has at least some level of real world testing as well. Indeed, most of Rothbard’s principles of natural law were proposed by legal theorists looking at the logic of common law rules, and before them by Roman jurisconsults doing the same for Roman law.
This is the sort of problem that “law and economics” enjoys posing.
I like the Law and Economics approach to thinking about legal questions. As a law student lo these many years ago, I wrote my (as yet unpublished) law review article on that very topic.
The problem with the field is that it is dominated by people who subscribe to lousy economic theories. Chicago School types and neo-Keynesians.
Bad economics –> bad law.
Why must I respect the pronouncements of the (private) courts, no matter how high or dignified?
Because you will probably want to use the services of these very same courts at some point, and they will likely refuse hear your case if you disregard their decisions when it suits you.
1) In your example, the sound is trespassing and polluting.
However, this is a perfect example where custom and “community standards” come into play. After a polite request is ignored, my protection agency calls his protection agency and due notice of non-violent trespass is given. If it remains unresolved, then a suit is filed.
2) Have you ever heard the term “uninsurable”? Just as someone is free to ignore the rulings of a private court, everyone else is free to ignore the “outlaw”. Be it business or individual, once such a pattern of behavior outside of the social standards is established, they are going to have a hard time dealing with anyone at all.
3) Independent courts. This is the theory behind having three “separate but equal” branches of government in America, except that it didn’t work because they’re all the same government.
Anarchic adjudicators have reputations and records of cases available, since they wish to be hired. A predatory protection agency opens itself to being sued; judges who display prejudice will be identified and refused by those bringing the suits.
Protection agencies which ignore court rulings will very quickly become “outlaw” themselves, and their clients will begin to be refused as well due to the very real “legal uncertainty” of doing business with them.
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If I may counter-point, Mr. Chernikov. Right now we have a _real_ rogue in place, the “State”. It runs both the protection agency and the courts. It passes laws that define its own actions as “legal” at will, and agents of the State who are abusive are generally absolved of any personal responsibility for their acts of predation.
The very worst of all the possible outcomes of “anarchy” exists right here, right now. A predatory protection agency, with prejudicial courts, and constantly changing “rules” which have become so complex (and in some cases kept deliberately secret!) that no one can know what is and is not legal.
In asking for a response to these objections to “anarchy” we must address the fact that even under anarchy it could not be worse than under a coercive state!
So one can easily imagine a time when people lived in some sort of rough’n'ready anarchism of sorts yet ‘the State’ still emerged? How could that happen? If a supposed violent type was be isolated from the happy community how could things go wrong if such behaviour is supposed to be nipped in the bud early on?
Oh dear, could it be there a dark side to humanity which actually likes violence? Why do films, TV shows, video games, magazines, etc., which feature violence sell quite well? Why do women seem to prefer an aggressive alpha man over a plain down-to-earth gentle man? Why do some women even go from one violent relationship to another? Why is fighting and war common?
Nope, I’m afraid until it is figured out what makes human have a tendency to glorify and enjoy violence and cast a violent types as a manly warriors then any society will revert quickly to a power hierarchy.
Who could argue with “logic” like that…
The problem with TLWP Sam’s “despite anarchy, state still emerges” argument is that even if this hypothetical were true, it shouldn’t stop us from advocating anarchy. It may be true that, for example, the U.S. government will one day devolve into a government akin to the government found in North Korea. Does this mean that all is lost, “there a dark side to humanity,” and we should no longer argue for our constitutional limits on government? Of course not. The U.S. government as it stands right now is better than the North Korean government. Thus, I would advocate the former over the latter. Similarly, an anarchic system of law would be better than the current U.S. government. Again, I would advocate the former over the latter. Whether there is “a dark side to humanity” matters not in this equation.
In other words, as long as the anarchic system is better than our current system, any amount of time spent under the anarchic system – no matter how brief – is superior to only remaining in our current system.
So one can easily imagine a time when people lived in some sort of rough’n'ready anarchism of sorts yet ‘the State’ still emerged?
Anarchy is the natural, permanent state of human society. Anarchism is a description of nature more than an agenda that one has to advocate.
Even for those living under the boot a democratic government, a communist one, or a fascist one (but I repeat myself), anarchy still exists. Governments can’t repeal laws of nature. The existence of a government doesn’t change the laws of nature.
Man always acts economically — no matter what the criminal organization that operates in his neighborhood calls itself. Man always acts to improve his situation, always acts to remove sources of dissatisfaction, always makes these decisions based on subjective values and ordinal preferences, and always creates wealth by engaging in mutually voluntary exchange.
Anarchists don’t have to argue anarchism into existence. Our contribution is to beat these criminal organizations back as much as possible, mostly by dispelling the lies that they propagate, all of which are some variation on the idea that their crimes are somehow beneficial to humanity.
George said,
“Anarchy is the natural, permanent state of human society. Anarchism is a description of nature more than an agenda that one has to advocate.”
I am wondering what makes anarchy either natural or permanent in human society. When and why does that happen?
Anarchy exists nowhere, especially in a state of nature. Even lion groups have “rules” that bind the individuals together, and without a State, they use coercion to enforce those rules.
If you mean human society exclusively, then you must mean “initially” as in when Crusoe met Friday and they worked out the rules for the “first” anarchistic society? Is that your launching point for your objective, self-evident assertion?
may I humbly suggest this article;
http://mises.org/journals/jls/17_3/17_3_4.pdf
Although it is not strictly related to the issues raised above, I think it can shed some interesting light on the discussion; libertarianism (market anarchy in this case) is not a matter of substituting a ‘libertarian legal code’ for the current legal code, and having the market enforce it. Rather, it requires rethinking the whole concept of what law is and ought to be.
“Before we had agencies, there were 11 people existing in the state of anarchy doing what each thinks is best in his own eyes.â€
I doubt there ever was a time of pure anarchism in the sense that each individual could do what he thought was right. If you look at tribal governments, or the earliest societies mentioned in the Bible, they were patriarchal. The oldest heads of families, the elders, got together and laid down the law for the rest of the people. Family clans joined together to form tribes and each clan sent a representative to the tribal council to make laws that pertained to whole tribe without infringing on the rights of clans to rule their own people.
While I can’t agree that anarchy is morally superior to government, I certainly side with anarchists in their practical efforts to limit government as much as possible. If we ever get to the point where government is so limited that we can consider eliminating it all together, I would be willing to give anarchy a shot.
The regulation of conduct should be based on the English Common Law, which has the advantage of having developed slowly, over almost a millennium, with plenty of opportunity for public comment and criticism.
The common law of nuisance, for example, is capable of handling the loud music situation.
By contrast, statutory law is usually developed in haste and in secret, and is influenced by people with hidden agendas. The result is an ever-burgeoning body of nearly incomprehensible laws and regulations, drafted with little input from the public.
If legislatures are to have a role at all, their dictates should be only suggested modifications to the common law, and each pronouncement should be subject to being overruled by a common referendum.
George Gaskell: I think that is a penetrating commentary you wrote above. Do you have your own blog? If you do, I think I would gain much from it.
I appreciate the challenges presented in Dmitry’s post, but no anarchist “must” answer any questions related to anarchy. The way Dmitry states it, it seems like he’s saying, “Okay, we can try anarchy instead of government socialism… but only if you prove you have a plan for ALL contingencies.”
Government currently fails in all contingencies, but even if it were successful in any of them, no anarchist would “need” to prove the superiority of anarchy before trying it because anarchy is the only situation which is consistent with individual rights and the NAP. No one needs to justify their support of a system that is consistent with rights/justice. On the contrary, government fetishists of all stripes and varieties must justify their violation of my rights that their systems are predicated on…
Maybe that isn’t how Dmitry meant to begin his post but that’s how I read it.
Besides, how many times do we have to answer these questions? They’ve been answered, and answered, and answered again. Were you just not paying attention, or do you just not like the answers?
Taylor, “Okay, we can try anarchy instead of government socialism… but only if you prove you have a plan for ALL contingencies.”
Exactly. And as Michael points out in the next posting, it’s been done. And done again, and again, and again.
The problem with “defending anarchism” is that the statists and believers in coercion never have to justify themselves. They never have to face the fact that they are using violent force against others merely on the basis of their opinions about what others “should” do.
I’m in a discussion about zoning laws right now with an avowed Libertarian who believes in zoning in order to “protect his equity”. Even he cannot grasp that he is advocating violence against people for violating his opinions.
The State has the allure of being able to give everyone what they want. He gets “protection of his equity”, someone else gets “free roads”. Those who recognize that the State _cannot_ give everyone what they want are marginalized and called “anarchists” and “loonies”.
Thank you, josh m.
Alas, no, I no longer have a blog. I barely have enough time to read Mises.org as it is!
Regarding question #3, if you start with 11 people in one place then surely they will come
to some sort of arrangement one way or another. If this arrangement is one of force and
domination, then it is likely to have bad consequences and people will want to either
escape it or reform it.
I mean, how does anyone answer questions about how to avoid injustice and tyranny?
Basically, those who exercise tyranny do not follow any rules to begin with so there is
no rule set to appeal to for such people. Criminals will not follow rules. That’s what makes
them criminals.
So there’s your answer. People have to fight, argue, persuade, flee, negotiate, circumvent,
and do whatever it takes to strive toward justice no matter what kind of societal arrangement precedes them. But in any system where there is enough freedom and enough decentralized
power, or where there are enough people believing that this is their right, then you have
the possibility of withdrawing support from unjust associations and putting your weight
behind others which do no violate your rights.
Obviously there is nothing that can stop Agency A from trying to dominate Agency B if
A is determined to do whatever it wants. There is nothing to stop a criminal from
committing a crime either. He may fail at it. We want him to fail at it. We want to either
prevent him or catch him and punish him after the fact, but there is no magic to it. How
could there be?
So it seems that if 4 of the 11 want to call themselves the state because they have
maneuvered themselves into a position where they think they can execute this maneuver,
being the “strongest” minority, then nothing will prevent them from the attempt. Will they
succeed? At what price? That’s another story.
The art of anarchy is to make it extremely costly, extremely dangerous, and extremely
difficult for any group to attempt an outright takeover. This is the only conceivable
approach, so what’s the point of even arguing? It would be nice if God stopped people
from doing wrong but He doesn’t. We are all given free will and some use that for evil.
The trick is to make arrangements which minimize the horrible possibilities of tyranny
we have already seen played out over and over again in history.
There can be no argument against a system which seeks to accomplish that to whatever
degree possible. Right? I mean, the alternative is the state. We have the state and we
know what it is and what it does. Is there a third way, a compromise between tyranny
and liberty which can be argued is BETTER THAN a non-tyrannical liberty? How could
there be??? Such a thing is self-refuting, isn’t it? How can a compromise between good
and evil be better than good-with-less-evil or good-with-hardly-any-official-evil?
So yeah, the question really answers itself. You’re going to get tyranny or liberty or
some mix out of any group of humans anyway. We want to maximize liberty by teaching people
that it is to their advantage. What is the argument against that again? I missed it.
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