The A Word
Must the State Supply and Enforce Law?
I confess to having deep sympathies for anarchism. I hold open the possibility and the hope that a prosperous and peaceful society can flourish without the state.
Unfortunately, the word “anarchy” has an offensive connotation. Anarchy is commonly understood to mean “lawlessness.” And lawlessness truly is offensive. A lawless society has no rules to govern behavior. It is a society in which the physically mighty and the deviously clever prey upon others. Victims of these predators suffer grievously. With security of persons and their property being precarious, a lawless society is inevitably destitute. Commerce, industry, saving, and investment don’t arise. Nor does civilization. Nearly all human effort, along with what few resources exist, is spent on plunder and on trying to protect oneself from plunder. Life is truly, to use Thomas Hobbes’s line, “solitary, poor, nasty, brutish, and short.”
Lawlessness is a curse worthy of our deepest fears.
This justified fear of lawlessness underlies most people’s assumption that the state is necessary. Most people—even many libertarians—assume that law must be supplied and enforced ultimately by the state.
I dissent. I disagree with those who say “Well, of course, the state at least must supply law and order, and protect us from violence and theft.”
What I disagree with is the “of course.” I object to the unreflective assumption that an agency with sovereign authority to use coercion—the state—is necessary. The state might indeed be necessary, but the burden of proving it ought to be on those who make the claim rather than on those who question it.
No human agency has as much blood on its hands as the state. Throughout history, states have routinely slaughtered innocent people—people outside of and within their own jurisdictions. Too many states have subjugated the masses and prevented ordinary people from trading freely and living according to their own individual lights rather than according to how the rulers wish them to live.
And modern states have raised these frightful arts to new heights. Obviously, communist and national-socialist states are most savage. But even the United States government has spilled innocent blood and tyrannized peaceful people. In the past it enforced slavery, conscripted young men to fight and die in wars, and herded native Americans onto reservations and treated them cruelly. Today it conducts armed raids in search of narcotics; prevents people from voluntarily using drugs that their physicians might otherwise prescribe as cures; seizes property in asset-forfeiture actions; and puts every American at greater risk of terrorist attack by intervening in the politics of other nations. Government in the United States today is even trying to superintend our thoughts by enacting hate-crime statutes.
No institution with the state’s track record deserves a presumption of legitimacy.
Again, it’s possible that even the best feasible stateless society will be worse than a society with a well-structured government constitutionally limited to protecting its citizens from violence and theft. But let the case be made. Do not accept the necessity of the state as beyond question.
The more we learn about history and economics, the more we see how remarkably creative and effective are voluntary actions within a regime of private property rights.
Mistaken Presumptions
Everywhere in the Western world, from even before the collapse of Rome until the late eighteenth century, consensus opinion held that religious belief is so important that it must be regulated by the state. Chaos was thought inevitable if everyone was free to choose which, if any, gods to worship. We now know that peace and order do not require state oversight of religious belief.
Until the late eighteenth century, consensus opinion held that international trade is too important not to be regulated by the state. People trading freely will, it was widely believed, impoverish both state and society. But the analyses offered by Adam Smith, David Ricardo, Frédéric Bastiat, and Co., along with real-world experience, proved quite the opposite.
Until very recently, even free-market economists thought that only the state can issue stable money. But historical research along with sound theoretical work has now shown convincingly that sound money has been, and can be, issued by purely private firms. Indeed, privately issued money is more likely to hold its value than is money issued by government.
The history is similar for freedom of speech and freedom of the press. So much of what consensus opinion once held to be unquestionably necessary for the state to regulate is now proven to be best left free.
Isn’t it possible that the same is true for law?
We already know that much law is the product of voluntary actions rather than of state coercion. Western commercial law originated not in the head of some monarch or from the deliberations of a state assembly. Rather, this law grew from the daily practices of private merchants. The “Law Merchant” (which is the foundation of the Uniform Commercial Code in use today in the United States) originated in medieval times when commerce on the Mediterranean began expanding. Merchants in Genoa or Venice shipped goods to merchants in north Africa and other distant places. And vice-versa. No sovereign power governed these merchants collectively. If a Tunisian merchant refused to pay his Venetian supplier for goods shipped from Venice, no royal sheriff or international Pooh-Bah could be called in to forcibly extract payment from the recalcitrant Tunisian.
Nevertheless, trade flourished. The reason is that the merchants themselves—business people sharing no sovereign master—developed law courts and procedures and, hence, a body of nuanced law that determined merchants’ rights and obligations.
If a merchant disregarded the ruling of a merchant court, or otherwise violated merchant law, he wasn’t imprisoned or threatened with violence. Instead, he simply lost the most valuable asset any business person can possess: a reputation for integrity. A lawbreaking merchant could no longer find other merchants to deal with. He was out of business. One result of this system of voluntary law was a remarkable degree of law-abiding behavior.
Does the success of private commercial law prove that other types of law—most notably, criminal law—can be supplied privately? No. But the Law Merchant combines with a long history of mistaken presumptions about the necessity of state action to suggest that we ought not presume that the state is necessary to supply law and protection from aggression. Perhaps, just maybe, a peaceful and productive society is possible with no state at all.
Whether a stateless society is called “anarchic” or something else is unimportant. What’s important is that we not dismiss the possibility before seriously reflecting on it.
Comment by Alan Loux on 18 December 2010:
Mr. Boudreaux,
I find your argument interesting and largely compelling. However, I find one major weakness with your case for private law, one I think you tacitly acknowledge when you say, “(d)oes the success of private commercial law prove that other types of law-most notably, criminal law-can be supplied privately? No.” Private law necessarily requires voluntary cooperation.
However, consider the situation of an unscrupulous “merchant” who willfully and maliciously defrauds his customers with the intent of relocating in a new venue under a new name and repeating the process. In this case, the merchant has clearly stepped into the realm of criminal activity and the lose of reputation is no sanction as he intends to simply move on and repeat his criminal activity. Most reasonable concepts of justice would dictate that he be required to make whole those whom he has defrauded at a minimum both for the sake of the victim and to remove the incentive to continue such activity.
Unfortunately, in order to extract the repairations, it will likely be necessary to use or threaten the use of force. This will require agents sanctioned by the citizens to use such force. In a very small community it may still be possible for this to be a spontaneous voluntary posse of citizens, ala the old west. But as the society grows and attempts to enforce uniform standards of conduct over greater and greater numbers it will by necessity develop some form of government in which the exlusive use of force resides.
The question then arises, what form of government best provides suffient power to enforce the common laws while preserving maximum liberty? Here I believe the founders of the United States were on the right track, if somewhat naive in the extent which men must be restained from accumulating power over his fellow. They envisioned a system of diffuse authority, with all concerns being delegated to most local level practicable. The irony of human nature is that, while some government is always necessary, the strictest law and harshest sanctions must be applied to the governing and not the governed.
Pingback by Ambiguous Lesson on Law on 30 May 2011:
[...] have defended the possibility of a stateless society – one emphatically not anarchic; one in which order and prosperity exist, and where law is [...]
Comment by terrymac on 31 July 2011:
The Not So Wild, Wild West: Property Rights on the Frontier book, by Terry L. Anderson and Peter J. Hill suggests that people actually did manage to deal with criminal cases without having formal government, and were more peaceful than contemporary cities back East.
A more recent study by Robert C. Ellickson, Order Without Law, finds that the vast majority of conflicts in Shasta County were solved not by “going to law”, but by informal social norms, which include – when lesser means fail – measured and regulated amounts of violence.
I would not rule out the private production of law and justice without a fair trial. The State has a lot to answer for, considering the abysmal record of SWAT raids gone wrong, police going out of control, innocent victims imprisoned, and so forth.
To address Alan Loux’s question more directly: ebay and other sites work, do they not? Suppliers establish good reputations by making good on their promises. The shady dealer of whom you speak would not be able to swindle many customers before he’d have to move to another account. He’d have to change more than just his business name; I’m sure that having the same address, phone number, or account number would raise a red flag. Reputable dealers attract many more customers; their business model is far more successful, in the long run.
My father had a saying: “You cannot cheat an honest man.” Those who succeed at cheating do so by offering something “too good to be true” to people who are all too eager to play.
Comment by joe on 7 December 2011:
This video is lecture by David Friedman about anarchy and law. It is must-see for everybody interested in this topic.
http://www.youtube.com/watch?v=Yz0AvdqRVnI
Comment by Mark on 7 December 2011:
If each person was able to govern himself, that is to restrain himself from violating others, then we could reach new heights of prosperity. Using all resources to expand knowledge & improve the human condition, instead of using some of those resources to prevent & punish violations, would require a lot of well-intentioned people. However, in the absence of an established fair system, even those with good intentions don’t know how best to distribute resources that are external to us all.
Our world is primitive. We are somewhere between the ape men fighting over the water hole in the opening segment of 2001: A Space Odyssey and the enlightened people necessary to make benevolent anarchy a reality. Not enough people practice metacognition. If they considered more often the causes of their desires, they might be more discriminating when choosing the means of satisfying those desires. Just as state initiation of force is acceptable to some as a means of obtaining wealth, so are the “king of the hill” and “finders keepers” methods of obtaining natural resources. All of these methods are unsatisfactory. So for our time in history, government fulfills a need for providing protection from those not evolved enough to visualize the benefits of universal non-aggression, and it should fulfill the need to establish a fair system of natural resource distribution.
As a geoist/ geolibertarian, I recognize the facts that nature came before people and that we all need & use nature. Since no one created nature, who is to say that one person has more of a right to nature than another? The peaceful solution is to say that nature should be equally accessible to all. Since we can’t be in the same place or use the same resource at the same time, this is unfeasible. So the practical solution is for an individual to compensate the rest of society for excluding them from a natural resource. For reusable resources like land, the natural resource tax should be proportional to the market demand. For non-renewable (or not easily renewable) resources like fossil fuels, minerals, and the earth’s limited ability to absorb pollution, direct democracy should set the rate of the natural resource tax. We have the technology to empower everyone to have a hand in energy policy & environmental protection.
By taxing that which comes from outside us, we would be able to shift the taxation focus from that which comes from inside us. Our labor, innovation, & risk would be free from extortion, so an incentive would be created to work as hard as one wants while conserving & using resources as efficiently as possible. The revenues from the natural resource tax would go to the currently necessary function of government: protection of individuals’ negative rights as well as the administration of the fair natural resource distribution system.
If it was left to the enlightened members of a suddenly benevolent anarchy to decide what is a fair share of natural resources, they might not know how to start. They might error on the side of generosity & take less than their fair share. But by providing a price system now that is determined by democracy & market forces, and which will be tweaked & adjusted as we grow out of the installation phase, we can provide a foundation from which future anarchists can estimate. As prosperity increases, the need for government protection and administration will diminish, & your vision of anarchy could become a reality.
Marxism & similar philosophies get a lot wrong, especially about some insights into human behavior and incentives, but one thing they do get right is that capitalism, defined where natural resources are considered to be capital, is doomed to abuse the natural factors of production. If we are able to make the distinctions clear between nature, labor, & capital to leftists, then they are more likely to realize that it’s evil to redistribute by force the fruits of labor & capital (capital, when defined as being distinct from nature resources that have yet to be affected by labor, is yesterday’s labor). Otherwise they envision an anarchic society as one that lets a few gather most of the resources so that they have a foothold on wealth & labor, and their vision wouldn’t be very incorrect. Libertarians need to pay more notice to the issue of nature in order to gain more credibility.