Anarchy and the Law

The Political Economy of Choice

Edward P. Stringham

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351531818
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Private-property anarchism, also known as anarchist libertarianism, individualist anarchism, and anarcho-capitalism, is a political philosophy and set of economic and legal arguments that maintains that, just as the markets and private institutions of civil society provide food, shelter, and other human needs, markets and contracts should provide law and that the rule of law itself can only be understood as a private institution.To the libertarian, the state and its police powers are not benign societal forces, but a system of conquest, authoritarianism, and occupation. But whereas limited government libertarians argue in favor of political constraints, anarchist libertarians argue that, to check government against abuse, the state itself must be replaced by a social order of self-government based on contracts. Indeed, contemporary history has shown that limited government is untenable, as it is inherently unstable and prone to corruption, being dependent on the interest-group politics of the state's current leadership. Anarchy and the Law presents the most important essays explaining, debating, and examining historical examples of stateless orders.Section I, "Theory of Private Property Anarchism, " presents articles that criticize arguments for government law enforcement and discuss how the private sector can provide law. In Section II, "Debate, " limited government libertarians argue with anarchist libertarians about the morality and viability of private-sector law enforcement. Section III, "History of Anarchist Thought, " contains a sampling of both classic anarchist works and modern studies of the history of anarchist thought and societies. Section IV, "Historical Case Studies of Non-Government Law Enforcement, " shows that the idea that markets can function without state coercion is an entirely viable concept. Anarchy and the Law is a comprehensive reader on anarchist libertarian thought that will be welcomed by students of govern

1
Introduction

Edward P. Stringham

“Political economy has disapproved equally of monopoly and communism in the various branches of human activity, wherever it has found them. Is it not then strange and unreasonable that it accepts them in the industry of security?”—Gustave de Molinari (1849)

Is coercive government necessary? Private-property anarchism—also known as anarchist libertarianism, individualist anarchism, or anarcho-capitalism—is a political philosophy and set of economic arguments that says that just as markets provide bread, so too should markets provide law. If someone agued that because food is so important it must be supplied by government, most would respond that government provision of food would be a disaster. Private-property anarchism applies the same logic to law and argues that because protecting property rights is so important, it is the last thing that should be left to the state. Under private-property anarchy, individual rights and market forces would reign supreme; there would just be no state. Security would be provided privately as it is at colleges, shopping malls, hotels, and casinos, and courts would be provided privately, as they are with arbitration and mediation today.

The current volume brings together a sampling of the major essays explaining, debating, and giving historical examples of stateless orders. Led by economists and political theorists such as Murray Rothbard, Bruce L. Benson, and David Friedman, the authors in this volume emphasize the efficacy of markets and the shortfalls of government. To the libertarian, the state and its enforcement apparatus is not a benign force in society—but where limited government libertarians argue in favor of political constraints, anarchist libertarians argue that the only way to check government against abuse is to eliminate it completely.

Today, more and more scholars and general readers see private-property anarchism as a viable and worthy alternative to the monopolistic and coercively funded state. Individualist anarchism has a long history but most of the early writing was published anonymously or in obscure places. Today, in contrast, private-property anarchism is now discussed in top economics journals such as the Journal of Political Economy (Hirshleifer, 1995; Dowd, 1997) and in 2002 George Mason University economist Vernon Smith became the first private-property anarchist to win the Nobel Prize (Smith, 2003, pp. 484-6). In addition to being a potentially important normative position, anarchist research helps explain events and trends of historical and contemporary relevance. Consider, for example, that private security guards now outnumber the public police, and private arbitration—the so-called “rent-a-judge” business—is booming. Private-property anarchism also sheds light on nineteenth-century Britain, where private prosecution agencies tracked down criminals long before the public police existed. Similarly, trade in Medieval Europe, like international trade today, was governed for hundreds of years under competing systems of law.

The works in this volume are influential, yet many were published in relatively obscure publications and are often difficult to track down. This editor knows this first hand, having written a doctoral dissertation, and before that a college senior thesis, on the topic. In college my professor liked my proposed topic but he doubted whether enough material on the subject had been published. Luckily, another economics professor was well read in private-property anarchism, and he compiled a list of books and articles for me. Only through that guidance, and a number of interlibrary loan requests, was I able to get a representative overview of the subject. Many of these articles are reprinted here. By compiling all of these important articles in one place, these works are now accessible to more than just a handful of experts or fortunate students.

This book reprints articles about anarchism from many libertarian points of view rather than attempt to present a unified vision of anarchy. Although all anarchists agree that the state is unnecessary, many of the specifics are still debated. For example, some authors support anarchy using arguments about consequences, while others support anarchy using arguments about rights. Some authors highlight how markets can function with private law enforcement, while others highlight how markets can function without any formal law at all. The articles in this volume will give the reader a sampling of some of the more important works on the subject.

The book’s articles are organized in four categories: Section I presents the major theoretical works that argue in favor of private-property anarchism; Section II contains writings that debate the viability of private-property anarchism, presenting articles and responses from the classical liberal and anarchist perspectives; Section III contains some of the early works in individualist anarchism, as well as modern articles on the history of individualist anarchist thought and the different types of anarchism; Section IV presents case studies and historical examples of societies that functioned without public law enforcement. The chapters need not be read in order so one can skip around depending on one’s interests. For example, if one wants an overview of the differences between libertarian and non-libertarian anarchism, one can skip directly to the chapter by Osterfeld.

I. Theory of Private Property Anarchism

The articles in this first section criticize arguments for government law enforcement and discuss how the private sector can provide law. They critique the very notion that a government monopoly over the use of force is needed. How will a competitive system function? How will the provision of public goods or the problem of free riders be dealt with under anarchy? Not all private-property anarchists agree but many of the chapters in this section offer speculative visions about how various problems might be solved. Reading the articles in this section will give an overview of some of the major anarchist visions.

The first chapter in Section I is Murray Rothbard’s important “Police, Law, and the Courts,” from For a New Liberty (1973). Jerome Tuccille (1971) once wrote a book about libertarianism entitled It Usually Begins with Ayn Rand indicating how many libertarians became interested in freedom by reading Ayn Rand. If one were to write a book about anarchist libertarianism one might entitle it It Usually Begins with Murray Rothbard. In the late 1940s, Murray Rothbard decided that that private-property anarchism was the logical conclusion of free-market thinking and published his first work on it in 1954. Rothbard was the first to merge modern economic thinking with nineteenth-century anarchists’ distaste for the state (Powell and Stringham, forthcoming). Rothbard wrote dozens of articles on anarchy but this, one of his most concise pieces, is reprinted here. Rothbard argues that the way to figure out how much protection there should be is to have a market for law enforcement. This chapter provides a speculative account of how police and courts could be provided on the market and it offers possible ways that people who subscribe to different protection agencies could settle disputes. Under Rothbard’s vision each protection agency would be held accountable to respect individual rights.

Along with Murray Rothbard, David Friedman is one of the founders of anarcho-capitalist thinking. Friedman, too, has written many articles on this subject but his earliest work on the subject appeared in his The Machinery of Freedom (1973). This chapter reprints a portion of the second edition (1989) of that book. Not content to believe that convincing people of anarchism requires changing their moral precepts, Friedman argues that even non-libertarians can embrace anarchism out of pure self-interest. Where Rothbard argues for anarchism based on rights, Friedman argues for anarchism based on efficiency. Friedman’s vision differs from that of Rothbard because Friedman believes that anarchist laws need not be libertarian. Under a market for law people would be free to choose any rules they wish and the resulting outcome would be determined by net willingness to pay. Friedman describes how multiple police might operate in each area and how they would have incentives to settle disputes through bargaining rather than violence.

Another early work that provides many details on how a competitive system might function was self-published by Morris and Linda Tannehill in 1970 and reprinted by Arno Press in 1972.¹ This book certainly had less circulation than Rothbard (1973) or Friedman (1973) but it clearly had influence on subsequent writers such as Friedman, who refers to a fictional defense agency as Tannehelp, Inc. These authors are concerned with any monopoly of the use of force (regardless of whether it is agreed to) and so they offer a system where multiple agencies compete in each geographic area. Some of the Tannehills’ discussion may appear as science fiction or less worked out than subsequent writing, but their book deserves a place as being one of the pioneering pieces to ponder how private police might work.

Subsequent writers have been able to expand or refine some of the early anarchist arguments. Boston University Law Professor Randy Barnett has contributed much to the subject (Barnett, 1998) and this volume reprints his 1986 article “Pursuing Justice in a Free Society: Crime Prevention and the Legal Order.” Barnett discusses how much of our current crime is caused by the fact that streets are publicly owned and not privately policed. Instead of having government incarcerate people to produce order, Barnett argues that simple exclusion would do much of the job. Once government monopoly is abolished Barnett believes that competing police could pick up any remaining slack. He offers a vision of how multiple law enforcers would operate in each geographic area and how they might deal with unfair renegade enforcers of law.

The next chapter, “Capitalist Production and the Problem of Public Goods,” is by Hans-Hermann Hoppe, a colleague of Rothbard who edited of the Journal of Libertarian Studies from 1995-2005. Hoppe’s subsequent books, such as Democracy—The God That Failed (2001), have had a much wider circulation, but this chapter from A Theory of Socialism and Capitalism (1989) contains one of Hoppe’s original contributions on the subject. Hoppe questions the public goods justifications for government altogether by arguing that that police and courts are excludable, rivalrous, and must be allocated in certain areas. They are not abstract public goods as commonly presented in textbooks. The government needs to decide whether to hire one judge and one policeman or 100,000 of each, but without a market mechanism the government has little way of figuring out how to allocate resources. Like authors before him, Hoppe describes arrangements that competing protection agencies might use to enforce laws, and Hoppe emphasizes the importance of public ideology towards maintaining liberty.

What about international conflict under anarchy? Jeffrey Rogers Hummel and Don Lavoie address the issue in “National Defense and the Public-Goods Problem.” Hummel and Lavoie have two responses to those who believe that government militaries are necessary. First, they question whether creating a national military actually solves the free-rider problem, and second, they question the extent to which the military is defending the public rather than defending the state. Most supporters of national defense assume that the interests of the public and the government coincide but Hummel and Lavoie question this assumption. In fact, militaries often pose the greatest threats to the public. Hummel and Lavoie believe that the true public good is defending liberty and they argue that this does not depend on the state. The important constraint against government must always be resistance on the part of the public.²

Roderick Long also discusses the problem of national defense in “Defending a Free Nation.” Like Hummel and Lavoie, Long argues that a nationalized military actually provides more of a threat than a defense. Long discusses that decentralized defense could be provided in at least four ways: first, by for-profit firms that act in consortium to defend their clients; second, by private firms that raise money through charitable means; third, by an armed populace who defend themselves without centralization; or fourth, defense by civilians who use non-violent resistance. Long discusses the possible benefits and possible shortcomings of each and argues that defending a free society would require some combination of all of the above.

The final chapter in Section I is by John Hasnas, who takes a different approach than anarchist predecessors such as the Tannehills, Rothbard, Friedman, or Barnett. Where earlier theorists attempt to create a blueprint of how the market would handle law, this legal philosopher argues that the law will evolve in ways we cannot predict. He argues that there is no one right way to settle disputes and we should not attempt to centrally plan the law. Attempting to create blueprints of how all problems will be solved might even be counterproductive because the blueprints will necessarily be incomplete. Hasnas argues that we need not have a crystal ball yet we should be confident that market solutions will be discovered.

II. Debate

After presenting some of the arguments in favor of private-property anarchism, the volume gets to the debate. The authors in this section are all libertarians, although some support anarchism while others support limited government. Early critics of anarchism argue that the only system consistent with individual rights is a system with a government monopoly on the use of force (Rand, 1964; Nozick, 1974). Later critics of anarchy often accept anarchy as being morally superior yet they express doubts in the viability of the system (Cowen, 1992; Rutten, 1999; Holcombe, 2004; Cowen and Sutter, 2005). All of these authors argue that special characteristics of law enforcement make a competitive system unlikely or impossible. This section includes some of the major criticisms of anarchy and some anarchist responses.

Robert Nozick provided one of the most famous critiques of private-property anarchism in Anarchy, State, and Utopia, which ended up winning the 1975 National Book Award for Philosophy and Religion. Nozick was a Harvard philosopher who had become a libertarian after meeting one of Rothbard’s colleagues, and later Rothbard, in the early 1960s (Raico, 2002). Still, Nozick was unconvinced of anarchist libertarianism, so he devoted the first third of his treatise arguing against Rothbard’s views on law. Nozick attempts to rebut the anarchist claim that all governments violate rights by positing an invisible hand theory of government. He argues that out of a state anarchy, a dominant protection agency would be justified in protecting their customers from potentially risky firms and this dominant protection agency would be justified in becoming a state. Even though the government would use force to prohibit competition, Nozick argues that the government would not violate rights provided it compensated those who wished to have an alternative arrangement. The best way of compensating those injured parties, according to Nozick, would be to provide them with free police.

Not all libertarians were convinced. The inaugural issue of the Journal of Libertarian Studies was devoted to analyzing Nozick’s theory of government; two of the responses are reprinted here. Roy Childs takes on Nozick’s defense of government in “The Invisible Hand Strikes Back” (1977). Childs criticizes Nozick for arguing that smaller protection agencies might be risky but the dominant protection agency would not. It might be the case that the government is the riskiest agency of all. Nozick gives no reason for us expect that this government would not become abusive itself. Childs also questions Nozick’s proposed compensation for those who do not wish to have government. He writes, “What is he willing to offer us as compensation?… He is generous to a fault. He will give us nothing less than the State.” Does Nozick really believe that compensating those who dislike police with more police will return them to their original indifference curve?

In “Robert Nozick and the Immaculate Conception of the State,” Rothbard argues that even if Nozick were correct in his logical reasoning, he fails to provide a justification for any existing government. Because no government was ever formed according to Nozick’s process or acts in a way that Nozick wishes, Rothbard argues that Nozick should join the anarchists in opposing government. At a more fundamental level, Rothbard questions...