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Έτσι θα
δουλεύει ο
Αναρχοκαπιταλισμός!
DIR By: FringeElements
Date: December 5, 2012, 12:48 am
---------------------------------------------------------
Murray Rothbard delivered this talk 32 years ago at the American
Society for Political and Legal Philosophy (ASPLP), Washington,
DC: December 28, 1974. It was first published in The Libertarian
Forum, volume 7.1, January 1975, available in PDF
HTML http://www.mises.org/journals/lf/1975/1975_01.pdf.
In attempting to outline how a "society without a state" – that
is, an anarchist society – might function successfully, I would
first like to defuse two common but mistaken criticisms of this
approach. First, is the argument that in providing for such
defense or protection services as courts, police, or even law
itself, I am simply smuggling the state back into society in
another form, and that therefore the system I am both analyzing
and advocating is not "really" anarchism.
This sort of criticism can only involve us in an endless and
arid dispute over semantics. Let me say from the beginning that
I define the state as that institution which possesses one or
both (almost always both) of the following properties: (1) it
acquires its income by the physical coercion known as
"taxation"; and (2) it asserts and usually obtains a coerced
monopoly of the provision of defense service (police and courts)
over a given territorial area. An institution not possessing
either of these properties is not and cannot be, in accordance
with my definition, a state.
On the other hand, I define anarchist society as one where there
is no legal possibility for coercive aggression against the
person or property of an individual. Anarchists oppose the state
because it has its very being in such aggression, namely, the
expropriation of private property through taxation, the coercive
exclusion of other providers of defense service from its
territory, and all of the other depredations and coercions that
are built upon these twin foci of invasions of individual
rights.
Nor is our definition of the state arbitrary, for these two
characteristics have been possessed by what is generally
acknowledged to be states throughout recorded history. The
state, by its use of physical coercion, has arrogated to itself
a compulsory monopoly of defense services over its territorial
jurisdiction. But it is certainly conceptually possible for such
services to be supplied by private, non-state institutions, and
indeed such services have historically been supplied by other
organizations than the state. To be opposed to the state is then
not necessarily to be opposed to services that have often been
linked with it; to be opposed to the state does not necessarily
imply that we must be opposed to police protection, courts,
arbitration, the minting of money, postal service, or roads and
highways. Some anarchists have indeed been opposed to police and
to all physical coercion in defense of person and property, but
this is not inherent in and is fundamentally irrelevant to the
anarchist position, which is precisely marked by opposition to
all physical coercion invasive of, or aggressing against, person
and property.
The crucial role of taxation may be seen in the fact that the
state is the only institution or organization in society which
regularly and systematically acquires its income through the use
of physical coercion. All other individuals or organizations
acquire their income voluntarily, either (1) through the
voluntary sale of goods and services to consumers on the market,
or (2) through voluntary gifts or donations by members or other
donors. If I cease or refrain from purchasing Wheaties on the
market, the Wheaties producers do not come after me with a gun
or the threat of imprisonment to force me to purchase; if I fail
to join the American Philosophical Association, the association
may not force me to join or prevent me from giving up my
membership. Only the state can do so; only the state can
confiscate my property or put me in jail if I do not pay its tax
tribute. Therefore, only the state regularly exists and has its
very being by means of coercive depredations on private
property.
Neither is it legitimate to challenge this sort of analysis by
claiming that in some other sense, the purchase of Wheaties or
membership in the APA is in some way "coercive." Anyone who is
still unhappy with this use of the term "coercion" can simply
eliminate the word from this discussion and substitute for it
"physical violence or the threat thereof," with the only loss
being in literary style rather than in the substance of the
argument. What anarchism proposes to do, then, is to abolish the
state, that is, to abolish the regularized institution of
aggressive coercion.
It need hardly be added that the state habitually builds upon
its coercive source of income by adding a host of other
aggressions upon society, ranging from economic controls to the
prohibition of ****ography to the compelling of religious
observance to the mass murder of civilians in organized warfare.
In short, the state, in the worlds of Albert Jay Nock, "claims
and exercises a monopoly of crime" over its territorial area.
The second criticism I would like to defuse before beginning the
main body of the paper is the common charge that anarchists
"assume that all people are good" and that without the state no
crime would be committed. In short, that anarchism assumes that
with the abolition of the state a New Anarchist Man will emerge,
cooperative, humane, and benevolent, so that no problem of crime
will then plague the society. I confess that I do not understand
the basis for this charge. Whatever other schools of anarchism
profess – and I do not believe that they are open to the charge
– I certainly do not adopt this view. I assume with most
observers that mankind is a mixture of good and evil, of
cooperative and criminal tendencies.
In my view, the anarchist society is one which maximizes the
tendencies for the good and the cooperative, while it minimizes
both the opportunity and the moral legitimacy of the evil and
the criminal. If the anarchist view is correct and the state is
indeed the great legalized and socially legitimated channel for
all manner of antisocial crime – theft, oppression, mass murder
– on a massive scale, then surely the abolition of such an
engine of crime can do nothing but favor the good in man and
discourage the bad.
A further point: in a profound sense, no social system, whether
anarchist or statist, can work at all unless most people are
"good" in the sense that they are not all hell-bent upon
assaulting and robbing their neighbors. If everyone were so
disposed, no amount of protection, whether state or private,
could succeed in staving off chaos. Furthermore, the more that
people are disposed to be peaceful and not aggress against their
neighbors, the more successfully any social system will work,
and the fewer resources will need to be devoted to police
protection. The anarchist view holds that, given the "nature of
man," given the degree of goodness or badness at any point in
time, anarchism will maximize the opportunities for the good and
minimize the channels for the bad. The rest depends on the
values held by the individual members of society. The only
further point that needs to be made is that by eliminating the
living example and the social legitimacy of the massive
legalized crime of the state, anarchism will to a large extent
promote peaceful values in the minds of the public.
We cannot of course deal here with the numerous arguments in
favor of anarchism or against the state, moral, political, and
economic. Nor can we take up the various goods and services now
provided by the state and show how private individuals and
groups will be able to supply them far more efficiently on the
free market. Here we can only deal with perhaps the most
difficult area, the area where it is almost universally assumed
that the state must exist and act, even if it is only a
"necessary evil" instead of a positive good: the vital realm of
defense or protection of person and property against aggression.
Surely, it is universally asserted, the state is at least
vitally necessary to provide police protection, the judicial
resolution of disputes and enforcement of contracts, and the
creation of the law itself that is to be enforced. My contention
is that all of these admittedly necessary services of protection
can be satisfactorily and efficiently supplied by private
persons and institutions on the free market.
One important caveat before we begin the body of this paper: new
proposals such as anarchism are almost always gauged against the
implicit assumption that the present, or statist system works to
perfection. Any lacunae or difficulties with the picture of the
anarchist society are considered net liabilities, and enough to
dismiss anarchism out of hand. It is, in short, implicitly
assumed that the state is doing its self-assumed job of
protecting person and property to perfection. We cannot here go
into the reasons why the state is bound to suffer inherently
from grave flaws and inefficiencies in such a task. All we need
do now is to point to the black and unprecedented record of the
state through history: no combination of private marauders can
possibly begin to match the state's unremitting record of theft,
confiscation, oppression, and mass murder. No collection of
Mafia or private bank robbers can begin to compare with all the
Hiroshimas, Dresdens, and Lidices and their analogues through
the history of mankind.
This point can be made more philosophically: it is illegitimate
to compare the merits of anarchism and statism by starting with
the present system as the implicit given and then critically
examining only the anarchist alternative. What we must do is to
begin at the zero point and then critically examine both
suggested alternatives. Suppose, for example, that we were all
suddenly dropped down on the earth de novo and that we were all
then confronted with the question of what societal arrangements
to adopt. And suppose then that someone suggested: "We are all
bound to suffer from those of us who wish to aggress against
their fellow men. Let us then solve this problem of crime by
handing all of our weapons to the Jones family, over there, by
giving all of our ultimate power to settle disputes to that
family. In that way, with their monopoly of coercion and of
ultimate decision making, the Jones family will be able to
protect each of us from each other." I submit that this proposal
would get very short shrift, except perhaps from the Jones
family themselves. And yet this is precisely the common argument
for the existence of the state. When we start from zero point,
as in the case of the Jones family, the question of "who will
guard the guardians?" becomes not simply an abiding lacuna in
the theory of the state but an overwhelming barrier to its
existence.
A final caveat: the anarchist is always at a disadvantage in
attempting to forecast the shape of the future anarchist
society. For it is impossible for observers to predict voluntary
social arrangements, including the provision of goods and
services, on the free market. Suppose, for example, that this
were the year 1874 and that someone predicted that eventually
there would be a radio-manufacturing industry. To be able to
make such a forecast successfully, does he have to be challenged
to state immediately how many radio manufacturers there would be
a century hence, how big they would be, where they would be
located, what technology and marketing techniques they would
use, and so on? Obviously, such a challenge would make no sense,
and in a profound sense the same is true of those who demand a
precise portrayal of the pattern of protection activities on the
market. Anarchism advocates the dissolution of the state into
social and market arrangements, and these arrangements are far
more flexible and less predictable than political institutions.
The most that we can do, then, is to offer broad guidelines and
perspectives on the shape of a projected anarchist society.
One important point to make here is that the advance of modern
technology makes anarchistic arrangements increasingly feasible.
Take, for example, the case of lighthouses, where it is often
charged that it is unfeasible for private lighthouse operators
to row out to each ship to charge it for use of the light. Apart
from the fact that this argument ignores the successful
existence of private lighthouses in earlier days, as in England
in the eighteenth century, another vital consideration is that
modern electronic technology makes charging each ship for the
light far more feasible. Thus, the ship would have to have paid
for an electronically controlled beam which could then be
automatically turned on for those ships which had paid for the
service.
Let us turn now to the problem of how disputes – in particular
disputes over alleged violations of person and property – would
be resolved in an anarchist society. First, it should be noted
that all disputes involve two parties: the plaintiff, the
alleged victim of the crime or tort and the defendant, the
alleged aggressor. In many cases of broken contract, of course,
each of the two parties alleging that the other is the culprit
is at the same time a plaintiff and a defendant.
An important point to remember is that any society, be it
statist or anarchist, has to have some way of resolving disputes
that will gain a majority consensus in society. There would be
no need for courts or arbitrators if everyone were omniscient
and knew instantaneously which persons were guilty of any given
crime or violation of contract. Since none of us is omniscient,
there has to be some method of deciding who is the criminal or
lawbreaker which will gain legitimacy; in short, whose decision
will be accepted by the great majority of the public.
In the first place, a dispute may be resolved voluntarily
between the two parties themselves, either unaided or with the
help of a third mediator. This poses no problem, and will
automatically be accepted by society at large. It is so accepted
even now, much less in a society imbued with the anarchistic
values of peaceful cooperation and agreement. Secondly and
similarly, the two parties, unable to reach agreement, may
decide to submit voluntarily to the decision of an arbitrator.
This agreement may arise either after a dispute has arisen, or
be provided for in advance in the original contract. Again,
there is no problem in such an arrangement gaining legitimacy.
Even in the present statist era, the notorious inefficiency and
coercive and cumbersome procedures of the politically run
government courts has led increasing numbers of citizens to turn
to voluntary and expert arbitration for a speedy and harmonious
settling of disputes.
Thus, William C. Wooldridge has written that
Arbitration has grown to proportions that make the courts a
secondary recourse in many areas and completely superfluous in
others. The ancient fear of the courts that arbitration would
"oust" them of their jurisdiction has been fulfilled with a
vengeance the common-law judges probably never anticipated.
Insurance companies adjust over fifty thousand claims a year
among themselves through arbitration, and the American
Arbitration Association (AAA), with headquarters in New York and
twenty-five regional offices across the country, last year
conducted over twenty-two thousand arbitrations. Its
twenty-three thousand associates available to serve as
arbitrators may outnumber the total number of judicial personnel
… in the United States…. Add to this the unknown number of
individuals who arbitrate disputes within particular industries
or in particular localities, without formal AAA affiliation, and
the quantitatively secondary role of official courts begins to
be apparent.[1]
Wooldridge adds the important point that, in addition to the
speed of arbitration procedures vis-à-vis the courts, the
arbitrators can proceed as experts in disregard of the official
government law; in a profound sense, then, they serve to create
a voluntary body of private law. "In other words," states
Wooldridge, "the system of extralegal, voluntary courts has
progressed hand in hand with a body of private law; the rules of
the state are circumvented by the same process that circumvents
the forums established for the settlement of disputes over those
rules…. In short, a private agreement between two people, a
bilateral 'law,' has supplanted the official law. The writ of
the sovereign has ceased to run, and for it is substituted a
rule tacitly or explicitly agreed to by the parties." Wooldridge
concludes that "if an arbitrator can choose to ignore a penal
damage rule or the status of limitations applicable to the claim
before him (and it is generally conceded that he has that
power), arbitration can be viewed as a practically revolutionary
instrument for self-liberation from the law…."[2]
It may be objected that arbitration only works successfully
because the courts enforce the award of the arbitrator.
Wooldridge points out, however, that arbitration was
unenforceable in the American courts before 1920, but that this
did not prevent voluntary arbitration from being successful and
expanding in the United States and in England. He points,
furthermore, to the successful operations of merchant courts
since the Middle Ages, those courts which successfully developed
the entire body of the law merchant. None of those courts
possessed the power of enforcement. He might have added the
private courts of shippers which developed the body of admiralty
law in a similar way.
How then did these private, "anarchistic," and voluntary courts
ensure the acceptance of their decisions? By the method of
social ostracism, and by the refusal to deal any further with
the offending merchant. This method of voluntary "enforcement,"
indeed provided highly successful. Wooldridge writes that "the
merchants' courts were voluntary, and if a man ignored their
judgment, he could not be sent to jail…. Nevertheless, it is
apparent that … [their] decisions were generally respected even
by the losers; otherwise people would never have used them in
the first place…. Merchants made their courts work simply by
agreeing to abide by the results. The merchant who broke the
understanding would not be sent to jail, to be sure, but neither
would he long continue to be a merchant, for the compliance
exacted by his fellows … provide if anything more effective than
physical coercion."[3] Nor did this voluntary method fail to
work in modern times. Wooldridge writes that it was precisely in
the years before 1920, when arbitration awards could not be
enforced in the courts,
that arbitration caught on and developed a following in the
American mercantile community. Its popularity, gained at a time
when abiding by an agreement to arbitrate had to be as voluntary
as the agreement itself, casts doubt on whether legal coercion
was an essential adjunct to the settlement of most disputes.
Cases of refusal to abide by an arbitrator's award were rare;
one founder of the American Arbitration Association could not
recall a single example. Like their medieval forerunners,
merchants in the Americas did not have to rely on any sanctions
other than those they could collectively impose on each other.
One who refused to pay up might find access to his association's
tribunal cut off in the future, or his name released to the
membership of his trade association; these penalties were far
more fearsome than the cost of the award with which he
disagreed. Voluntary and private adjudications were voluntarily
and privately adhered to, if not out of honor, out of the
self-interest of businessmen who knew that the arbitral mode of
dispute settlement would cease to be available to them very
quickly if they ignored an award.[4]
It should also be pointed out that modern technology makes even
more feasible the collection and dissemination of information
about people's credit ratings and records of keeping or
violating their contracts or arbitration agreements. Presumably,
an anarchist society would see the expansion of this sort of
dissemination of data and thereby facilitate the ostracism or
boycotting of contract and arbitration violators.
How would arbitrators be selected in an anarchist society? In
the same way as they are chosen now, and as they were chosen in
the days of strictly voluntary arbitration: the arbitrators with
the best reputation for efficiency and probity would be chosen
by the various parties on the market. As in other processes of
the market, the arbitrators with the best record in settling
disputes will come to gain an increasing amount of business, and
those with poor records will no longer enjoy clients and will
have to shift to another line of endeavor. Here it must be
emphasized that parties in dispute will seek out those
arbitrators with the best reputation for both expertise and
impartiality and that inefficient or biased arbitrators will
rapidly have to find another occupation.
Thus, the Tannehills emphasize:
the advocates of government see initiated force (the legal force
of government) as the only solution to social disputes.
According to them, if everyone in society were not forced to use
the same court system … disputes would be insoluble. Apparently
it doesn't occur to them that disputing parties are capable of
freely choosing their own arbiters…. they have not realized that
disputants would, in fact, be far better off if they could
choose among competing arbitration agencies so that they could
reap the benefits of competition and specialization. It should
be obvious that a court system which has a monopoly guaranteed
by the force of statutory law will not give as good quality
service as will free-market arbitration agencies which must
compete for their customers….
Perhaps the least tenable argument for government arbitration of
disputes is the one which holds that governmental judges are
more impartial because they operate outside the market and so
have no vested interests…. Owning political allegiance to
government is certainly no guarantee of impartiality! A
governmental judge is always impelled to be partial – in favor
of the government, from whom he gets his pay and his power! On
the other hand, an arbiter who sells his services in a free
market knows that he must be as scrupulously honest, fair, and
impartial as possible or no pair of disputants will buy his
services to arbitrate their dispute. A free-market arbiter
depends for his livelihood on his skill and fairness at settling
disputes. A governmental judge depends on political pull.[5]
If desired, furthermore, the contracting parties could provide
in advance for a series of arbitrators:
It would be more economical and in most cases quite sufficient
to have only one arbitration agency to hear the case. But if the
parties felt that a further appeal might be necessary and were
willing to risk the extra expense, they could provide for a
succession of two or even more arbitration agencies. The names
of these agencies would be written into the contract in order
from the "first court of appeal" to the "last court of appeal."
It would be neither necessary nor desirable to have one single,
final court of appeal for every person in the society, as we
have today in the United States Supreme Court.[6]
Arbitration, then, poses little difficulty for a portrayal of
the free society. But what of torts or crimes of aggression
where there has been no contract? Or suppose that the breaker of
a contract defies the arbitration award? Is ostracism enough? In
short, how can courts develop in the free-market anarchist
society which will have the power to enforce judgments against
criminals or contract breakers?
In the wide sense, defense service consists of guards or police
who use force in defending person and property against attack,
and judges or courts whose role is to use socially accepted
procedures to determine who the criminals or tortfeasors are, as
well as to enforce judicial awards, such as damages or the
keeping of contracts. On the free market, many scenarios are
possible on the relationship between the private courts and the
police; they may be "vertically integrated," for example, or
their services may be supplied by separate firms. Furthermore,
it seems likely that police service will be supplied by
insurance companies who will provide crime insurance to their
clients. In that case, insurance companies will pay off the
victims of crime or the breaking of contracts or arbitration
awards and then pursue the aggressors in court to recoup their
losses. There is a natural market connection between insurance
companies and defense service, since they need pay out less
benefits in proportion as they are able to keep down the rate of
crime.
Courts might either charge fees for their services, with the
losers of cases obliged to pay court costs, or else they may
subsist on monthly or yearly premiums by their clients, who may
be either individuals or the police or insurance agencies.
Suppose, for example, that Smith is an aggrieved party, either
because he has been assaulted or robbed, or because an
arbitration award in his favor has not been honored. Smith
believes that Jones is the party guilty of the crime. Smith then
goes to a court, Court A, of which he is a client, and brings
charges against Jones as a defendant. In my view, the hallmark
of an anarchist society is one where no man may legally compel
someone who is not a convicted criminal to do anything, since
that would be aggression against an innocent man's person or
property. Therefore, Court A can only invite rather than
subpoena Jones to attend his trial. Of course, if Jones refused
to appear or send a representative, his side of the case will
not be heard. The trial of Jones proceeds. Suppose that Court A
finds Jones innocent. In my view, part of the generally accepted
law code of the anarchist society (on which see further below)
is that this must end the matter unless Smith can prove charges
of gross incompetence or bias on the part of the court.
Suppose, next, that Court A finds Jones guilty. Jones might
accept the verdict, because he too is a client of the same
court, because he knows he is guilty, or for some other reason.
In that case, Court A proceeds to exercise judgment against
Jones. Neither of these instances poses very difficult problems
for our picture of the anarchist society. But suppose, instead,
that Jones contests the decision; he then goes to his court,
Court B, and the case is retried there. Suppose that Court B,
too, finds Jones guilty. Again, it seems to me that the accepted
law code of the anarchist society will assert that this ends the
matter; both parties have had their say in courts which each has
selected, and the decision for guilt is unanimous.
Suppose, however, the most difficult case: that Court B finds
Jones innocent. The two courts, each subscribed to by one of the
two parties, have split their verdicts. In that case, the two
courts will submit the case to an appeals court, or arbitrator,
which the two courts agree upon. There seems to be no real
difficulty about the concept of an appeals court. As in the case
of arbitration contracts, it seems very likely that the various
private courts in the society will have prior agreements to
submit their disputes to a particular appeals court. How will
the appeals judges be chosen? Again, as in the case of
arbitrators or of the first judges on the free market, they will
be chosen for their expertise and their reputation for
efficiency, honesty, and integrity. Obviously, appeals judges
who are inefficient or biased will scarcely be chosen by courts
who will have a dispute. The point here is that there is no need
for a legally established or institutionalized single, monopoly
appeals court system, as states now provide. There is no reason
why there cannot arise a multitude of efficient and honest
appeals judges who will be selected by the disputant courts,
just as there are numerous private arbitrators on the market
today. The appeals court renders its decision, and the courts
proceed to enforce it if, in our example, Jones is considered
guilty – unless, of course, Jones can prove bias in some other
court proceedings.
No society can have unlimited judicial appeals, for in that case
there would be no point to having judges or courts at all.
Therefore, every society, whether statist or anarchist, will
have to have some socially accepted cutoff point for trials and
appeals. My suggestion is the rule that the agreement of any two
courts, be decisive. "Two" is not an arbitrary figure, for it
reflects the fact that there are two parties, the plaintiff and
the defendant, to any alleged crime or contract dispute.
If the courts are to be empowered to enforce decision against
guilty parties, does this not bring back the state in another
form and thereby negate anarchism? No, for at the beginning of
this paper I explicitly defined anarchism in such a way as not
to rule out the use of defensive force – force in defense of
person and property – by privately supported agencies. In the
same way, it is not bringing back the state to allow persons to
use force to defend themselves against aggression, or to hire
guards or police agencies to defend them.
It should be noted, however, that in the anarchist society there
will be no "district attorney" to press charges on behalf of
"society." Only the victims will press charges as the
plaintiffs. If, then, these victims should happen to be absolute
pacifists who are opposed even to defensive force, then they
will simply not press charges in the courts or otherwise
retaliate against those who have aggressed against them. In a
free society that would be their right. If the victim should
suffer from murder, then his heir would have the right to press
the charges.
What of the Hatfield-and-McCoy problem? Suppose that a Hatfield
kills a McCoy, and that McCoy's heir does not belong to a
private insurance, police agency, or court, and decides to
retaliate himself? Since under anarchism there can be no
coercion of the noncriminal, McCoy would have the perfect right
to do so. No one may be compelled to bring his case to a court.
Indeed, since the right to hire police or courts flows form the
right of self-defense against aggression, it would be
inconsistent and in contradiction to the very basis of the free
society to institute such compulsion.
Suppose, then, that the surviving McCoy finds what he believes
to be the guilty Hatfield and kills him in turn? What then? This
is fine, except that McCoy may have to worry about charges being
brought against him by a surviving Hatfield. Here it must be
emphasized that in the law of the anarchist society based on
defense against aggression, the courts would not be able to
proceed against McCoy if in fact he killed the right Hatfield.
His problem would arise if the courts should find that he made a
grievous mistake and killed the wrong man; in that case, he in
turn would be found guilty of murder. Surely, in most instances,
individuals will wish to obviate such problems by taking their
case to a court and thereby gain social acceptability for their
defensive retaliation – not for the act of retaliation but for
the correctness of deciding who the criminal in any given case
might be. The purpose of the judicial process, indeed, is to
find a way of general agreement on who might be the criminal or
contract breaker in any given case. The judicial process is not
a good in itself; thus, in the case of an assassination, such as
Jack Ruby's murder of Lee Harvey Oswald, on public television,
there is no need for a complex judicial process, since the name
of the murderer is evident to all.
Will not the possibility exist of a private court that may turn
venal and dishonest, or of a private police force that turns
criminal and extorts money by coercion? Of course such an event
may occur, given the propensities of human nature. Anarchism is
not a moral cure-all. But the important point is that market
forces exist to place severe checks on such possibilities,
especially in contrast to a society where a state exists. For,
in the first place, judges, like arbitrators, will prosper on
the market in proportion to their reputation for efficiency and
impartiality. Secondly, on the free market important checks and
balances exist against venal courts or criminal police forces.
Namely, that there are competing courts and police agencies to
whom victims may turn for redress. If the "Prudential Police
Agency" should turn outlaw and extract revenue from victims by
coercion, the latter would have the option of turning to the
"Mutual" or "Equitable" Police Agency for defense and for
pressing charges against Prudential. These are the genuine
"checks and balances" of the free market, genuine in contrast to
the phony check and balances of a state system, where all the
alleged "balancing" agencies are in the hands of one monopoly
government. Indeed, given the monopoly "protection service" of a
state, what is there to prevent a state from using its monopoly
channels of coercion to extort money from the public? What are
the checks and limits of the state? None, except for the
extremely difficult course of revolution against a power with
all of the guns in its hands. In fact, the state provides an
easy, legitimated channel for crime and aggression, since it has
its very being in the crime of tax theft, and the coerced
monopoly of "protection." It is the state, indeed, that
functions as a mighty "protection racket" on a giant and massive
scale. It is the state that says: "Pay us for your 'protection'
or else." In the light of the massive and inherent activities of
the state, the danger of a "protection racket" emerging from one
or more private police agencies is relatively small indeed.
Moreover, it must be emphasized that a crucial element in the
power of the state is its legitimacy in the eyes of the majority
of the public, the fact that after centuries of propaganda, the
depredations of the state are looked upon rather as benevolent
services. Taxation is generally not seen as theft, nor war as
mass murder, nor conscription as slavery. Should a private
police agency turn outlaw, should "Prudential" become a
protection racket, it would then lack the social legitimacy
which the state has managed to accrue to itself over the
centuries. "Prudential" would be seen by all as bandits, rather
than as legitimate or divinely appointed "sovereigns" bent on
promoting the "common good" or the "general welfare." And
lacking such legitimacy, "Prudential" would have to face the
wrath of the public and the defense and retaliation of the other
private defense agencies, the police and courts, on the free
market. Given these inherent checks and limits, a successful
transformation from a free society to bandit rule becomes most
unlikely. Indeed, historically, it has been very difficult for a
state to arise to supplant a stateless society; usually, it has
come about through external conquest rather than by evolution
from within a society.
Within the anarchist camp, there has been much dispute on
whether the private courts would have to be bound by a basic,
common law code. Ingenious attempts have been made to work out a
system where the laws or standards of decision-making by the
courts would differ completely from one to another.[7] But in my
view all would have to abide by the basic law code, in
particular, prohibition of aggression against person and
property, in order to fulfill our definition of anarchism as a
system which provides no legal sanction for such aggression.
Suppose, for example, that one group of people in society holds
that all redheads are demons who deserve to be shot on sight.
Suppose that Jones, one of this group, shoots Smith, a redhead.
Suppose that Smith or his heir presses charges in a court, but
that Jones's court, in philosophic agreement with Jones, finds
him innocent therefore. It seems to me that in order to be
considered legitimate, any court would have to follow the basic
libertarian law code of the inviolate right of person and
property. For otherwise, courts might legally subscribe to a
code which sanctions such aggression in various cases, and which
to that extent would violate the definition of anarchism and
introduce, if not the state, then a strong element of
statishness or legalized aggression into the society.
But again I see no insuperable difficulties here. For in that
case, anarchists, in agitating for their creed, will simply
include in their agitation the idea of a general libertarian law
code as part and parcel of the anarchist creed of abolition of
legalized aggression against person or property in the society.
In contrast to the general law code, other aspects of court
decisions could legitimately vary in accordance with the market
or the wishes of the clients; for example, the language the
cases will be conducted in, the number of judges to be involved,
and so on.
There are other problems of the basic law code which there is no
time to go into here: for example, the definition of just
property titles or the question of legitimate punishment of
convicted offenders – though the latter problem of course exists
in statist legal systems as well.[8] The basic point, however,
is that the state is not needed to arrive at legal principles or
their elaboration: indeed, much of the common law, the law
merchant, admiralty law, and private law in general, grew up
apart from the state, by judges not making the law but finding
it on the basis of agreed-upon principles derived either from
custom or reason.[9] The idea that the state is needed to make
law is as much a myth as that the state is needed to supply
postal or police services.
Enough has been said here, I believe, to indicate that an
anarchist system for settling disputes would be both viable and
self-subsistent: that once adopted, it could work and continue
indefinitely. How to arrive at that system is of course a very
different problem, but certainly at the very least it will not
likely come about unless people are convinced of its
workability, are convinced, in short, that the state is not a
necessary evil.
Notes
[1] William C. Wooldrdige, Uncle Sam, the Monopoly Man (New
Rochelle, New York: Arlington House, 1970), p. 101.
[2] Ibid., pp. 103–104.
[3] Ibid., pp. 95–96.
[4] Ibid., pp. 100–101.
[5] Morris and Linda Tannehill, The Market for Liberty (Lansing,
Michigan: privately printed, 1970), pp. 65–67.
[6] Ibid., p. 68.
[7] E.g., David Friedman, The Machinery of Freedom (New York:
Harper and Row, 1973).
[8] For an elaboration of these points, see Murray N. Rothbard,
For a New Liberty (New York: Macmillan, 1973).
[9] Thus, see Bruno Leoni, Freedom and the Law (Princeton, New
Jersey: D. Van Nostrand Co., 1961).
Murray N. Rothbard
HTML http://www.lewrockwell.com/gordon/gordon11.html
(1926–1995) was
dean of the Austrian School, founder of modern libertarianism,
and chief academic officer of the Mises Institute
HTML http://www.mises.org/.
He was also editor – with Lew Rockwell –
of The Rothbard-Rockwell Report
HTML http://www.amazon.com/dp/1883959020?tag=lewrockwell&camp=14573&creative=327641&linkCode=as1&creativeASIN=1883959020&adid=0YPPR08DFHMQKDY76B40&,<br
/>and appointed Lew as his executor. See his books.
HTML http://www.lewrockwell.com/rothbard/rothbard-collection.html
Copyright © 2012 by the Ludwig von Mises Institute. Permission
to reprint in whole or in part is hereby granted, provided full
credit is given.
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