by Roderick T. Long by Roderick T. Long

DIGG THIS

Alan Greenspan started off his political career, under Ayn Rand’s influence, as a fairly consistent Austro-libertarian, penning articles defending the gold standard and condemning antitrust law. Nowadays, of course, while he still calls himself a libertarian, few would accuse him of excessive purity in that regard. There’s been much speculation as to the when and why of his transition. For what it’s worth, in Greenspan’s recent memoir The Age of Turbulence (which I’ve looked through so you don’t have to — though I haven’t read the whole thing), we hear the story in his own words.

There’s not much libertarian meat in the book; the only libertarian or libertarian-ish figures to appear in the index (apart from a brief — and mistaken — reference to Herbert Spencer (pp. 278—79) as “a follower of Charles Darwin”) are Milton Friedman and Ayn Rand. (Well, we also learn that (p. 323) former Putin advisor Andrei Illarionov is an Ayn Rand fan.) Greenspan’s favourite economist is clearly Friedman, on whom he lavishes praise throughout; his favourite political figures, likewise adulated, are Reagan and Thatcher. Despite his early Austrianism, there’s no reference in the index to Mises, Hayek, or any other Austrian economist. (Okay, Benjamin Anderson shows up in a footnote; and Fritz Machlup is mentioned on p. 497 although he’s not in the index.) Greenspan refers (pp. 97—98) to his own early libertarian essay on antitrust, written for The Objectivist — but only in connection with his using it as material for winning Andrea Mitchell’s affections. (I am not making this up!)

Greenspan’s libertarian odyssey begins with his conversion to Ayn Rand’s Objectivism. When he first encountered Rand, he was an adherent of logical positivism, which he describes this way:

Pioneered by Ludwig Wittgenstein, it is a school of thought whose main tenet is that knowledge can only be gained from facts and numbers — it heavily emphasizes rigorous proof. There are no moral absolutes: values and ethics and the way people behave are reflections of culture and are not subject to logic. (p. 39)

The reference to Wittgenstein is an error; the positivists were inspired by a certain interpretation of Wittgenstein’s writings, but it was a deeply mistaken interpretation that Wittgenstein himself never endorsed. (And who doesn’t think that “knowledge can only be gained from facts”?) But never mind. In any case, his introduction to Rand and her salon soon chipped away at his enthusiasm for positivism. The following story is a familiar one in Randian circles, but this is (I believe) the first time we’ve heard it from Greenspan’s own perspective:

After listening for a few evenings, I showed my logical-positivist colors. I don’t recall the topic being discussed, but something prompted me to postulate that there are no moral absolutes. Ayn Rand pounced. “How can that be?”

“Because to be truly rational, you can’t hold a conviction without significant empirical evidence,”

“How can that be?” she asked again. “Don’t you exist?”

“I … can’t be sure,” I admitted.

“Would you be willing to say you don’t exist?”

“I might….”

“And by the way, who is making that argument?”

Maybe you had to be there — or, more to the point, maybe you had to be a twenty-six-year-old math junkie — but this exchange really shook me. I saw she was quite effectively demonstrating the self-contradictory nature of my position. … It dawned on me that a lot of what I’d decided was true was probably just plain wrong. Of course, I was too stubborn and embarrassed to concede immediately; instead, I clammed up.

This exchange suggests that the young Greenspan was not especially well-versed in the logical positivism he espoused, since the positivists themselves did cover this sort of objection in their writings and could have provided, if not unassailable answers, at least better than no answer.

Rand came away from that evening with a nickname for me. She dubbed me “the Undertaker,” partly because my manner was so serious and partly because I always wore a dark suit and tie. Over the next few weeks, I later learned, she would ask people, “Well, has the Undertaker decided he exists yet?” (p. 41)

If I know anything about Rand, the nickname was probably first and foremost a reference to the content of Greenspan’s philosophical views — specifically, Greenspan’s uncertainty as to whether he was alive. In any case, Rand soon convinced Greenspan of his own existence and much else:

Ayn Rand became a stabilizing force in my life. … I was intellectually limited until I met her. All of my work had been empirical and numbers-oriented, never values-oriented. … My logical positivism had discounted history and literature …. [Actually the logical positivists didn't discount history, exactly; they simply thought it could be reconstructed on the lines of empirical natural science. — RTL.] Rand persuaded me to look at human beings, their values, how they work, what they do and why they do it, and how they think and why they think. This broadened my horizons far beyond the models of economics I’d learned. I began to study how societies form and how cultures behave, and to realize that economics and forecasting depend on such knowledge — different cultures grow and create material wealth in profoundly different ways. All of this started for me with Ayn Rand. She introduced me to a vast realm from which I’d shut myself off. (pp. 51—53)

Greenspan’s conversion to Objectivism included its radically libertarian economic and political content; but Greenspan soon began to have doubts:

I engaged in the all-night debates and wrote spirited commentary for her newsletter with the fervor of a young acolyte …. It was only as contradictions inherent in my new notions began to emerge that the fervor receded.

One contradiction I found particularly enlightening. According to objectivist [sic] precepts, taxation was immoral because it allowed for government appropriation of private property by force. Yet if taxation was wrong, how could you reliably finance the essential functions of government, including the protection of individuals’ rights through police power? The Randian answer, that those who rationally saw the need for government would contribute voluntarily, was inadequate. People have free will; suppose they refused? (p. 52)

This passage is doubly puzzling. First, the Randian answer to government funding is not to rely solely on voluntary contributions; as Rand explains in The Virtue of Selfishness, her solution is to have the government coercively monopolize the field of contract enforcement (ch. 14) and charge monopoly rents for this service (ch. 15). Has Greenspan forgotten the actual position he’s criticizing? Second, even if reliance on voluntary contributions were Rand’s position, Greenspan’s “free will” objection would be a poor response to it. After all, the administrators and functionaries of government also have free will and thus cannot be guaranteed to behave in any particular way either. (If Greenspan instead wanted to maximize the likelihood that people will act in such a way as to protect rights, he might have considered opening the field of rights protection to economic competition rather than consigning it to the perverse incentival and informational constraints of a monopoly. But free-market anarchism is no path for the politically ambitious.)

Greenspan continues:

I still found the broader philosophy of unfettered market competition compelling, as I do to this day, but I reluctantly began to realize that if there were qualifications to my intellectual edifice, I couldn’t argue that others should readily accept it. By the time I joined Richard Nixon’s campaign for the presidency in 1968, I had long since decided to engage in efforts to advance free-market capitalism as an insider, rather than as a critical pamphleteer. When I agreed to accept the nomination as chairman of the president’s Council of Economic Advisor, I knew I would have to pledge to uphold not only the Constitution but also the laws of the land, many of which I thought were wrong. The existence of a democratic society governed by the rule of law implies a lack of unanimity on almost every aspect of the public agenda. Compromise on public issues is the price of civilization, not an abrogation of principle. (p. 52)

Greenspan offers no clue as to whether there are any exceptions to this dictum. Should one also compromise on such issues as, say, slavery or genocide? Would compromise there too be the “price of civilization”? If not, what are the criteria for determining which issues are open to compromise and which are not? When Greenspan abandoned his early Objectivism, did he also abandon an interest in finding answers to such questions? We’re not told.

Later in the book, however, Greenspan does offer some further reasons for rejecting libertarian purity. He asks: “Are all property rights inalienable, or must they conform to the reality that conditions them?” (p. 496) Greenspan seems not to know what the word “inalienable” means; it refers to a right that cannot be surrendered or transferred. (For example, the dispute over the legitimacy of selling oneself into slavery turns on whether self-ownership is alienable or inalienable.) If all property rights were inalienable, trade of any kind would be impermissible!

What Greenspan is actually asking is whether all property rights are absolute or inviolable; and he offers the case of intellectual property as a reason for thinking they are not. On the one hand, Greenspan argues, libertarianism seems to support “the initial conclusion that if somebody creates an idea, he or she has the right of ownership.” But on the other hand:

It is at least conceivable that if the right to exclusive use of ideas cumulated through enough generations, some far future newly born generation would find all ideas necessary for survival already legally spoken for, and off-limits without permission of those holding the rights to the ideas. Clearly the protection of one person’s right cannot be at the expense of another’s right to life (as it would be in such an instance), or the magnificent edifice of individual rights would harbor an internal contradiction. (p. 496)

Second, if intellectual property rights were genuine rights with the implications that Greenspan describes, then they presumably would not conflict with the right to life — since on a libertarian understanding, the right to life is a negative right not to be killed, not a positive right to be provided with the materials needed for life. So in this case too there would be no contradiction.

Greenspan’s argument could be extended equally well — or equally badly (take your pick) — to the case of property in land: it is likewise “at least conceivable” that if the right to exclusive use of land “cumulated through enough generations, some far future newly born generation” would find all land necessary for survival “already legally spoken for, and off-limits without permission of those” holding the rights to the land. (Indeed Herbert Spencer offered essentially this argument against the legitimacy of private ownership of land; see my reply here.) So if property in land is inviolable despite this inconvenient consequence, why shouldn’t intellectual property, if legitimate at all, be so as well? Or if Greenspan’s argument instead implies that we should accept pragmatic limitations on intellectual property, why not equally so on landed property? Yet Greenspan takes his argument to show that “intellectual property is importantly different from physical property.” (p. 495)

If this is a sample of the compelling argumentation that convinced Greenspan to abandon libertarian purity, Greenspan’s critics can be forgiven for wondering whether other inducements were involved as well.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; co-editor of the Journal of Ayn Rand Studies; President of the Molinari Institute; Senior Scholar of the Ludwig von Mises Institute; author of Reason and Value: Aristotle versus Rand; and co-editor of Anarchism/Minarchism: Is a Government Part of a Free Country? He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

DIGG THIS

I remember how, when the Viking lander first began sending photos back from Mars, scientists were amazed to discover that the Martian sky is pink. Initially the sky showed as white, but the Viking project’s scientists quickly noticed that the colour of the lettering on the lander itself was off, and when they corrected the colour, the sky blazed forth in glorious pink — a development which the scientists noted was completely unexpected.

At the time, the scientists’ astonishment baffled me — because I had learned years before, in elementary school, long before any photos had come back from Mars, that scientists were predicting that the Martian sky would be pink or purple. So how did the scientific community manage to forget its earlier prediction? Why were they surprised by something a fifth-grader in Idaho could have told them?

Beats me. But I lately had a feeling of dj vu over the recent news story concerning the discovery of a coin with Cleopatra’s face on it, revealing a less than beautiful visage. Archaeologists and historians reported with cries of amazement that Cleopatra’s reputation as a great beauty must now be revised.

Their reaction puzzles me in much the same way that the Viking project’s scientists’ reaction to the Martian sky puzzled me.

First: it’s old news that Cleopatra’s charm lay more in her personality than in her physical appearance; I recently quoted Plutarch on my blog to just that effect. Surely all these archaeologists and historians have read Plutarch?

Second: this is not the first time that coins with Cleopatra’s image on them have been discovered. Given my longstanding interest in classical history, I’ve been seeing pictures of Cleopatra coins for years. None of the depictions was especially attractive. So what’s new here? Surely all these archaeologists and historians have seen Cleopatra coins before?

Third: this is nothing unique to Cleopatra. On the contrary, it’s a persistent feature of ancient coins generally that the images on them are less flattering than, say, statues or busts of the same persons. Take a look, for example, at these depictions of Augustus and Tiberius.

Is it because the busts were idealised, making the coins a more accurate portrayal? Or is it because the coins were more hastily made (or because the ancients were, famously, better at 3-D representation that at 2-D — or again, better at 2-D front views than at 2-D profiles), making the busts actually more accurate? Or is it (perhaps most likely) some of each?

Well, I don’t know. What I do know is that looking good in busts and not so good on coins is a pervasive feature of ancient portraiture. So why all the surprise about Cleopatra? And why the leap to the assumption of the coin’s accuracy in this case? Surely all these archaeologists and historians have seen ancient statuary and currency before?

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; President of the Molinari Institute; Senior Scholar of the Ludwig von Mises Institute; and author of Reason and Value: Aristotle versus Rand. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

DIGG THIS

Five years ago today, four planes were hijacked as part of a terrorist operation that handed the U.S. government one of the juiciest Higgs crises it has ever enjoyed. In the years since, the government has exploited this bonanza enthusiastically, launching wars abroad (wars that have long since claimed far more innocent lives than were lost on 9/11) and chopping away at civil liberties at home — all in response to an incident that U.S. government policies led to in the first place.

The fifth anniversary was marked by commemorations amounting to an apotheosis of the American State, with endless images of waving flags, and endless posturing. The 9/11 attacks were repeatedly referred to as “the worst terrorist attack in history” (conveniently forgetting Hiroshima, Nagasaki, Dresden …). The president spoke earnestly about children who “still long for the daddies who will never cradle them in their arms” (as though having one’s father killed was something only suffered, never caused, by Americans) and about “fighting to maintain the way of life enjoyed by free nations” (as though ending lives abroad and destroying freedom here were the natural way to do this). “America did not ask for this war,” he proclaimed innocently, as though the terrorists’ actions were something other than a response to, and in large part a mirror image of, U.S. foreign policy in the years prior to 9/11.

The ever-increasing hassling of airline passengers in the wake of 9/11 is far from being the worst of what the government has been doing. Hell, it’s probably not even 20th worst. But it’s an apt illustration of the dynamic of statism.

The 9/11 hijackers used sharp objects, so government security starts confiscating nail clippers. A later would-be airline bomber tries to ignite a bomb in his shoe, so passengers have to start taking off their shoes. Some bozoes in Britain may have talked about using airline bombs involving gels, so passengers are relieved of their hairspray and water bottles.

The pattern is clear: each time the terrorists use a new tactic, the government imposes a new restriction on the rest of us, a restriction designed to combat that specific tactic; so the terrorists switch to a different tactic, followed by new restrictions. If the terrorists switch to targeting trains and buses, more restrictions will be imposed on people riding trains and buses — until the terrorists switch to standing on overpasses and dropping bombs on cars as they pass.

By the logic of the situation, government restrictions will always increase. When restriction A makes one tactic more difficult, the terrorists switch to a different tactic, so the government imposes restriction B — but, of course, doesn’t remove restriction A. Given the massive variety of tactics for terrorists to switch among, this process has no natural endpoint short of total government control over every aspect of life. What Mises showed with regard to price controls applies equally here.

Part of what makes this process possible is the externalisation, the socialisation, of the costs of governmental decisions — the separation of the decision-makers from the burdens their decisions impose. When the cost of a new restriction is not borne by those who make it, the demand for such restrictions will be artificially high. If there were a competitive market in airline security, passengers could decide for themselves whether to choose a low-security or a high-security airline: the gels-or-no-gels decision would then get made by the people who bear the costs either way.

Besides this institutional perversity, another factor that helps to make the government-ratcheting-to-infinity dynamic possible is ideological: the tendency to imagine that passing a law magically brings about its desired result. This comes across clearly in the interviews that were broadcast with long lines of delayed passengers in the wake of the Gel Terror. u201CI’m willing to put up with the inconvenience in order to be safe,u201D they kept saying (or at least, that’s what the passengers the networks chose to broadcast kept saying). The problem is that this describes the trade-off inaccurately. Confiscating everybody’s liquids doesn’t move passengers from a dangerous condition to a safe one; at best it shifts their chances of being killed in a terrorist attack from already-very-low to very-slightly-lower. But when a government policy is advertised as Preventing the Gel Terror, it is seen as Preventing the Gel Terror; the ideological mystification that sets up the state as external to the social relations it attempts to govern enhances its perceived effectiveness far beyond its actual effectiveness.

The real lesson of 9/11 is, or should be, the ineffectiveness of state action. On 9/11, the danger came not from a well-armed, well-funded state military but from a small group of passengers armed with box-cutters; and the most effective defense (on flight 93) was likewise not a well-armed, well-funded state military but another small group of passengers armed with fists and hand luggage.

The state is incompetent to protect us. What it’s good at is, first, dragging us into crises, and second, using those crises as an excuse to expand its control over our lives, and over the lives of people around the globe — wading through blood in the process. But even this ability depends not on its inherent powers but on our own acquiescence.

Withdraw your consent!

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; President of the Molinari Institute; Senior Scholar of the Ludwig von Mises Institute; and author of Reason and Value: Aristotle versus Rand. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

DIGG THIS

By most reports, Israeli bombings of Lebanon are strengthening Hezbollah’s support among Lebanese civilians, while Hezbollah bombings of Israel are strengthening the Israeli government’s support among Israeli civilians.

So here we have (what are by libertarian standards) two criminal gangs, both blasting away at innocent civilians, and the result is to increase these gangs’ popularity among the civilians being victimised! A very successful outcome for both sides.

The trick, of course, is that each gang is blasting away at civilians in the other gang’s territory. If each gang were to attack its own civilians directly, those civilians would quickly turn against the gangs in their midst. But since in fact each side’s continuation of bombings is what allows the other side to excuse, and get away with, its bombings, the situation isn’t really all that different; each side is causing its own civilians to be bombed. It’s just that by following the stratagem of attacking each other’s civilians, the two gangs manage to avoid (and indeed promote the exact opposite of) the loss of domestic power that would follow if they were to bring about the same results more directly. Think of it as the geopolitical version of Strangers on a Train.

No, I’m not suggesting that Hezbollah and the Israeli government are in cahoots. They don’t need to be. This is how the logic of statism works, this is how its incentives play out, regardless of what its agents specifically intend. The externalisation of costs is what states do best. (True, Hezbollah isn’t a state, but it aspires to be one, and its actions are played out within a framework sustained by statism.)

What would happen if the civilian populations of Israel and Lebanon were to come to see this conflict, not as Israel versus Hezbollah, or even Israeli-government-plus-Israeli-civilians versus Hezbollah-plus-Lebanese-civilians, but rather as Israeli-government-plus-Hezbollah versus ordinary-people-living-on-the-eastern-Mediterranean? Both Hezbollah and the Israeli government would quickly lose their popular support, and their ability to wage war against each other would go with it.

But by encouraging the identification of civilians with the states that rule them, statism makes it harder for civilians to find their way to such a perspective. (Of course racism and religious intolerance are part of the story too — yet another way in which such cultural values help to prop up the state apparatus.) As long as the people of the eastern Mediterranean continue to view this conflict through statist spectacles, Hezbollah and/or the Israeli government will continue to be the victors, while the civilian populace in both Israel and Lebanon will remain the vanquished and victimised.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; President of the Molinari Institute; Senior Scholar of the Ludwig von Mises Institute; and author of Reason and Value: Aristotle versus Rand. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

To speak of a 19th-century libertarian critique of fascism might seem anachronistic, since fascism is generally understood as a 20th-century phenomenon. But it did not spring from nothing, and the libertarians of the 19th century saw it in the making.

Fascism differs from its close cousins, Communism and aristocratic conservatism, in several important ways. Let’s begin with its difference from Communism. First, where Communism seeks to substitute the state for private ownership, fascism seeks to incorporate or co-opt private ownership into the state apparatus through public-private partnership. Thus fascism tends to be more tempting than Communism to wealthy interests who may see it as a way to insulate their economic power from competition through forced cartelization and other corporatist stratagems. Second, where Communist ideology tends to be cosmopolitan and internationalist, fascist ideology tends to be chauvinistically nationalist, stressing a particularist allegiance to one’s country, culture, or ethnicity; along with this goes a suspicion of rationalism, a preference for economic autarky, and a view of life as one of inevitable but glorious struggle. Fascism also tends to cultivate a u201Cfolksyu201D or vlkisch u201Cman of the people,u201D u201Cpragmatism over principles,u201D u201Cheart over head,u201D u201Cpay no attention to those pointy-headed intellectualsu201D rhetorical style.

These contrasts with Communism should not be overstated, of course. Communist governments cannot afford to suppress private ownership entirely, since doing so leads swiftly to economic collapse. Moreover, however internationalist and cosmopolitan Communist regimes may be in theory, they tend to be just as chauvinistically nationalist in practice as their fascist cousins; while on the other hand fascist regimes are sometimes perfectly willing to pay lip service to liberal universalism. All the same, there is a difference in emphasis and in strategy between fascism and Communism here. When faced with existing institutions that threaten the power of the state — be they corporations, churches, the family, tradition — the Communist impulse is by and large to abolish them, while the fascist impulse is by and large to absorb them.

Power structures external to the state are potential rivals to the state’s own power, and so states always have some reason to seek their abolition; Communism gives that tendency full rein. But power structures external to the state are also potential allies of the state, particularly if they serve to encourage habits of subordination and regimentation in the populace, and so the potential always exists for a mutually beneficial partnership; herein lies the fascist strategy.

The respects in which fascism differs from Communism might seem to align it rather more closely with the traditional aristocratic conservatism of the ancien rgime, which is likewise particularist, corporatist, mercantilist, nationalist, militarist, patriarchal, and anti-rationalist. But fascism differs from old-style conservatism in embracing an ideal of industrial progress directed by managerial technocrats, as well as in adopting a populist stance of championing the u201Clittle guyu201D against elites — remember the folksiness. (If fascism’s technocratic tendencies appear to conflict with its anti-rationalist tendencies, well, in the words of proto-fascist Moeller van den Bruck, u201Cwe must be strong enough to live in contradictions.u201D)

Some of the differences between fascism and the older conservatism may be due to the advances won by their common foes, the liberals. The progress of liberalism and of industry had the effect of shifting wealth, at least in part, from the traditional aristocracy to new private hands, thus creating new private interest groups with the ability to operate as political entrepreneurs; hence, perhaps, the tendency toward the emergence of a plutocratic class nominally outside the traditional state apparatus. Likewise the progress of democracy meant that plutocracy could hope to triumph only by donning populist guise; hence the paradox of an elitist movement marching forward under the banner of anti-elitism — a prime example in U. S. history being antitrust laws and other allegedly anti-big-business legislation being vigorously lobbied for by big business itself. (Cf. Murray Rothbard’s u201CWar Collectivism in World War I,u201D Paul Weaver’s The Suicidal Corporation: How Big Business Fails America, Gabriel Kolko’s Railroads and Regulation, 1877—-1916 and Triumph of Conservatism: A Reinterpretation of American History, 1900—1916, Butler Shaffer’s In Restraint of Trade: The Business Campaign Against Competition, 1918—1938, Roy Childs’ u201CBig Business and the Rise of American Statism,u201D Joseph Stromberg’s u201CPolitical Economy of Liberal Corporatismu201D and u201CThe Role of State Monopoly Capitalism in the American Empire,u201D Walter Grinder & John Hagel’s u201CToward a Theory of State Capitalism: Ultimate Decision-Making and Class Structure,u201D etc.) Hence fascism’s odd fusion of privilege and folksiness; one might call it a movement that thinks like Halliburton and talks like George W. Bush.

The partnership between the official state apparatus and the nominally private beneficiaries of state power was a familiar theme for 19th-century libertarians like Frdric Bastiat and Gustave de Molinari, who extended and radicalised Adam Smith’s critique of mercantilist protectionism as a scheme for benefiting concentrated business interests at the expense of the general public. In Molinari’s words, businesses u201Casked the government to safeguard their monopolies by the same methods that it had put into effect for protecting its own.u201D (u201CThe Evolution of Protectionism.u201D) Libertarian sociologists like Charles Comte and Charles Dunoyer had developed an entire pre-Marxian theory of class conflict, according to which the key to the position of the ruling class is not, contra Marx, access to the means of production, but rather access to political power. (Cf. David Hart’s Radical Liberalism of Charles Comte and Charles Dunoyer, Leonard Liggio’s u201CCharles Dunoyer and French Classical Liberalism,u201D Ralph Raico’s u201CClassical Liberal Exploitation Theory,u201D Mark Weinburg’s u201CSocial Analysis of Three Early 19th-Century Classical Liberals,u201D etc.) When Marx called the French government u201Ca joint-stock company for the exploitation of France’s national wealthu201D on behalf of the bourgeois elite and at the expense of production and commerce (u201CClass Struggles in Franceu201D), he was only echoing what libertarians had been saying for decades.

Herbert Spencer likewise complained of the influence of u201Crailway autocratsu201D in American politics, u201Coverriding the rights of shareholdersu201D and u201Cdominating over courts of justice and State governments.u201D (u201CThe Americans.u201D) And Lysander Spooner denounced the financial and banking elite, writing as follows:

Among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. … But with (so-called) civilized peoples … by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. As a necessary consequence, those who stand ready to furnish this money, are the real rulers. … [The] nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. They are little or nothing else than mere tools, employed by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all. … [The] so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. And these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. They could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. … In addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the Banks of England, of France, and of Vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. Perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. They also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist. (No Treason VI.) As this quotation from Spooner shows, 19th-century libertarians also saw a connection between plutocracy and militarism, and sharply criticised what today would be called the military-industrial complex. Spencer, for example, railed against the u201Cmilitary aid and state-conferred privilegesu201D enjoyed by the East India Company, which enabled it to commit u201Cdeeds of blood and rapineu201D in India where u201Cthe police authorities league with wealthy scampsu201D to u201Callow the machinery of the law to be used for purposes of extortion.u201D Such abuses, Spencer noted, were u201Cmainly due to the carrying on of state-management, and with the help of state-funds and state-force.u201D Had the military might of the British Empire not been placed at the disposal of the Company’s directors, u201Ctheir defenceless state would have compelled themu201D to behave differently; they would of necessity have u201Cturned their attention wholly to the development of commerce, and conducted themselves peaceably.u201D (Social Statics, ch. 27.) Writing in the mid-1800s, Spencer complained especially of the u201Cgrievous salt monopolyu201D — which would of course become the chief catalyst for the Indian independence movement nearly a century later.

But who [Spencer wrote] are the gainers? The monopolists. … Into their pockets, in the shape of salaries to civil and military officers, dividends of profits, etc., has gone a large part of the enormous revenue of the East India company. … The rich owners of colonial property must have protection, as well as their brethren, the landowners of England — the one their prohibitive duties, the other their corn laws; and the resources of the poor, starved, overburdened people must be still further drained, to augment the overflowing wealth of their rulers. (u201CThe Proper Sphere of Government.u201D) Thus plutocracy, these libertarian writers thought, drives militarism. But they also held that militarism drives plutocracy. Thus the American Spencerian William Graham Sumner argued:

[M]ilitarism, expansion and imperialism will all favor plutocracy. In the first place, war and expansion will favor jobbery, both in the dependencies and at home. In the second place, they will take away the attention of the people from what the plutocrats are doing. In the third place, they will cause large expenditures of the people’s money, the return for which will not go into the treasury, but into the hands of a few schemers. In the fourth place, they will call for a large public debt and taxes, and these things especially tend to make men unequal, because any social burdens bear more heavily on the weak than on the strong, and so make the weak weaker and the strong stronger. (u201CConquest of the United States by Spain.u201D) While the influence of private wealth on government was not exactly anything new, 19th-century libertarians tended to think that it had been given a new impetus by the rise of democracy and its inevitable accompaniment, interest-group politics — what the French liberals called u201Culcerous government.u201D A number of libertarians argued that representative democracy leads to a struggle for political influence among competing special-interest groups, and unsurprisingly it is the wealthier and more concentrated interests that tend to win out. Sumner, for example, maintained that democracy, far from being, as is usually supposed, the archenemy of plutocracy, is actually plutocracy’s crucial enabler:

The methods and machinery of democratic, republican self-government — caucuses, primaries, committees, and conventions — lend themselves perhaps more easily than other political methods and machinery to the uses of selfish cliques which seek political influence for interested purposes. (Sumner, u201CAndrew Jacksonu201D) [On this topic I highly recommend Scott Trask's article u201CWilliam Graham Sumner: Against Democracy, Plutocracy, and Imperialismu201D in the Fall 2004 issue of the Journal of Libertarian Studies.]

But on this point writers like Sumner were simply developing the implications of James Madison’s remark in the Federalist that the extreme mutability to which representative governments are liable is likely to work to the benefit of a wealthy minority:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. … Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY. (Federalist 62.) And Madison in his turn was drawing on the ancient Athenian argument that electoral systems are actually oligarchic rather than democratic. (See my u201CThe Athenian Constitution: Government by Jury and Referendum.u201D)

While both libertarians and Marxists complained of the power of wealthy elites, they disagreed on the remedy, because they disagreed on the origin of the problem. For the Marxists, plutocracy was a product of the market; the ruling class emerged through commerce, and only subsequently seized control of the state in order to consolidate its already established hegemony. (Marx himself was ambivalent on this question, but Engels solidified the orthodox Marxist position.) Hence for the Marxists it was the market that needed to be suppressed; this is the origin of the left-wing view that fascism is simply a manifestation of free-market u201Ccapitalism.u201D For the libertarians, by contrast, a ruling class depends for its power on the power of the state, and so it is the latter that needs to be suppressed.

The libertarians did not, however, make the mistake of supposing that state power by itself was the sole problem. Since rulers are generally outnumbered by those they rule, these thinkers saw that state power itself cannot survive except through popular acceptance, which the state lacks the power to compel. In Spencer’s words, u201CIn the case of a government representing a dominant class …. [t]he very existence of a class monopolizing all power, is due to certain sentiments in the commonalty.u201D (u201CThe Social Organism.u201D) Likewise Dunoyer writes:

The first mistake, and to my mind the most serious, is not sufficiently seeing difficulties where they are — not recognising them except in governments. Since it is indeed there that the greatest obstacles ordinarily make themselves felt, it is assumed that that is where they exist, and that alone is where one endeavours to attack them. … One is unwilling to see that nations are the material from which governments are made; that it is from their bosom that governments emerge …. (Industry and Morals.) Or again as American anarchist Edwin Walker pointedly asked: if statism were the cause of all social evil, what on earth could be the cause of statism? (Communism and Conscience.)

19th-century libertarians, then, tended to be u201Cradicalu201D or u201Cdialecticalu201D thinkers in Chris Sciabarra’s sense; they viewed state power as part of an interlocking system of mutually reinforcing social practices and structures, and were intensely interested in the institutional and cultural accompaniments of statism — accompaniments which both drew support from and provided support to the power of the state.

It is in their analysis of these accompaniments that we see them grappling with the specifically fascist aspects of statist culture. Writers like Dunoyer, Spencer, and Molinari saw a close connection between statism and militarism because in their view the state originated in war; tribes that succeeded in fending off invaders became increasingly dependent on their warrior class, while tribes that failed to fend off invaders become the subjects of the enemy tribe’s warrior class — and in either the case the warrior class was thereby positioned to become a ruling class. Dunoyer and Spencer also saw a reciprocal relationship between statism and militarism on the one hand and patriarchy on the other, since they regarded the rule of men over women as the original class division from which all later ones grew. They would thus not have been surprised to see fascist movements glorifying military conquest on the one hand and the patriarchal family on the other.

They would also not have been surprised to notice that fascism takes its name from the fasces, the Roman symbol of an axe in a bundle of rods. (A bundle of rods by itself indicated that an official had the power to inflict corporal punishment; adding an axe to the bundle of rods implied the power to inflict death as well.) Bastiat regarded the prevailing reverence for ancient Rome as a pernicious cultural influence. He wrote:

What was [Roman] patriotism? Hatred of foreigners, the destruction of all civilization, the stifling of all progress, the scourging of the world with fire and sword, the chaining of women, children, and old men to triumphal chariots — this was glory, this was virtue. … The lesson has not been lost; and it is from Rome undoubtedly that this adage comes to us … one nation’s loss is another nation’s gain — an adage that still governs the world. To acquire an idea of Roman morality, imagine in the heart of Paris an organization of men who hate to work, determined to satisfy their wants by deceit and force, and consequently at war with society. Doubtless a certain moral code and even some solid virtues will soon manifest themselves in such an organization. Courage, perseverance, self-control, prudence, discipline, constancy in misfortune, deep secrecy, punctilio, devotion to the community — such undoubtedly will be the virtues that necessity and prevailing opinion would develop among these brigands; such were those of the buccaneers; such were those of the Romans. It may be said that, in regard to the latter, the grandeur of their enterprise and the immensity of their success has thrown so glorious a veil over their crimes as to transform them into virtues. And this is precisely why that school is so pernicious. It is not abject vice, it is vice crowned with splendor, that seduces men’s souls. (u201CAcademic Degrees and Socialism.u201D) Rome, incidentally, was another culture in which plutocracy triumphed by adopting a democratic guise.

Spencer was convinced that Western culture in his day was entering a retrograde phase, a phase he called u201Cre-barbarization,u201D in which the values of industrial society, the society of voluntary cooperation and mutual benefit, were yielding once more to the older values of militant society, of hierarchy, regimentation, aggressive impulses, anti-intellectuality, and a zero-sum view of human existence. Spencer saw evidence of re-barbarization not only in official military policy but also in cultural developments, as for example in the increasing militarization of the church, or the recrudescence of what he called the u201Creligion of enmity.u201D (Principles of Sociology.) Spencer was distressed to observe that in u201Cthe Church-services held on the occasion of the departure of troops for South Africa [he was writing of the Boer War] …. certain hymns are used in a manner which substitutes for the spiritual enemy the human enemy. Thus for a generation past, under cover of the forms of a religion which preaches peace, love, and forgiveness, there has been a perpetual shouting of the words u2018war’ and u2018blood,’ u2018fire’ and u2018battle,’ and a continual exercise of the antagonistic feelings.u201D (Facts and Comments, ch. 25.)

Another cultural development that Spencer identified as a symptom of re-barbarization was the rise of professional sports. In Spencer’s words:

Naturally along with … exaltation of brute force in its armed form … showing how widely the trait of coerciveness, which is the essential element in militancy, has pervaded the nation, there has gone a cultivation of skilled physical force under the form of athleticism. The word is quite modern, for the reason that a generation ago the facts to be embraced under it were not sufficiently numerous and conspicuous to call for it. In my early days u201Csports,u201D so called, were almost exclusively represented by one weekly paper, Bell’s Life in London, found I am told in the haunts of rowdies and in taverns of a low class. Since then, the growth has been such that the acquirement of skill in leading games has become an absorbing occupation. … Meanwhile, to satisfy the demand journalism has been developing, so that besides sundry daily and weekly papers devoted wholly to sports, the ordinary daily and weekly papers give reports of u201Ceventsu201D in all localities, and not unfrequently a daily paper has a whole page occupied with them. …. While bodily superiority is coming to the front, mental superiority is retreating into the background. … Thus various changes point back to those mediaeval days when courage and bodily power were the sole qualifications of the ruling classes, while such culture as existed was confined to priests and the inmates of monasteries. (Facts and Comments, ch. 25.) I suspect Spencer would not enjoy chanting u201CWar Eagle!u201D in the Auburn stadium.

Such symptoms of militarization and barbarization in the arena of culture proceeded in tandem with analogous changes in government, including a shift in power from civilian to military authority, and within the civilian government from parliamentary to executive authority. In 1881 Spencer referred to the measures then being taken in Germany

for extending, directly and indirectly, the control over popular life. On the one hand there are the laws under which, up to middle of last year [i.e., 1880], 224 socialist societies have been closed, 180 periodicals suppressed, 317 books, &c., forbidden …. On the other hand may be named Prince Bismarck’s scheme for re-establishing guilds (bodies which by their regulations coerce their members), and his scheme of State-insurance …. In all which changes we see progress towards … the replacing of civil organization by military organization, towards the strengthening of restraints over the individual and regulation of his life in greater detail. (Principles of Sociology V. 17.) And Spencer saw England beginning to follow in Germany’s footsteps; he noted with alarm u201Ca manifest extension of the militant spirit and discipline among the police, who, wearing helmet-shaped hats, beginning to carry revolvers, and looking upon themselves as half soldiers, have come to speak of the people as u2018civilians’,u201D and he objected to the u201Cincreasing assimilation of the volunteer forces to the regular army, now going to the extent of proposing to make them available abroad, so that instead of defensive action for which they were created, they can be used for offensive action.u201D (Ibid.)

A few years later, on the other side of the Atlantic, Voltairine de Cleyre noted analogous developments in America:

Our fathers thought they had guarded against a standing army by providing for the voluntary militia. In our day we have lived to see this militia declared part of the regular military force of the United States, and subject to the same demands as the regulars. Within another generation we shall probably see its members in the regular pay of the general government. (u201CAnarchism and American Traditions.u201D) At the time of the Spanish-American War, Sumner was writing of the u201CConquest of the United States by Spain,u201D meaning that the United States, while victorious over Spain on the battlefield, was succumbing ideologically to the imperialist ideas that Spain had traditionally represented. And E. L. Godkin, the editor of The Nation — at that time a classical liberal periodical — wrote despairingly in 1900 of the u201CEclipse of Liberalismu201D:

Nationalism in the sense of national greed [he wrote] has supplanted Liberalism. …. By making the aggrandizement of a particular nation a higher end than the welfare of mankind, it has sophisticated the moral sense of Christendom. … We hear no more of natural rights, but of inferior races, whose part it is to submit to the government of those whom God has made their superiors. The old fallacy of divine right has once more asserted its ruinous power, and before it is again repudiated there must be international struggles on a terrific scale. At home all criticism on the foreign policy of our rulers is denounced as unpatriotic. They must not be changed, for the national policy must be continuous. Abroad, the rulers of every country must hasten to every scene of international plunder, that they may secure their share. To succeed in these predatory expeditions the restraints on parliamentary … government must be cast aside. (u201CThe Eclipse of Liberalism.u201D) In short, the 19th-century libertarians observed the rise of the various tendencies that would come together to make fascism — militarism, corporatism, regimentation, nationalist chauvinism, plutocracy in populist guise, the call for u201Cstrong leadersu201D and u201Cnational greatness,u201D the glorification of conflict over commerce and of brute force over intellect — and they bitterly opposed the whole package. And although they ultimately lost that battle, their fallen banner is ours to pick up.

Let me give Sumner the last word; he’s writing once again of the Spanish-American War:

[T]he reason why liberty, of which we Americans talk so much, is a good thing is that it means leaving people to live out their own lives in their own way, while we do the same. If we believe in liberty, as an American principle, why do we not stand by it? Why are we going to throw it away to enter upon a Spanish policy of dominion and regulation? … [T]his scheme of a republic which our fathers formed was a glorious dream which demands more than a word of respect and affection before it passes away. … Their idea was that they would never allow any of the social and political abuses of the old world to grow up here. … There were to be no armies except a militia, which would have no functions but those of police. They would have no court and no pomp; no orders, or ribbons, or decorations, or titles. They would have no public debt. … There was to be no grand diplomacy, because they intended to mind their own business and not be involved in any of the intrigues to which European statesmen were accustomed. There was to be no balance of power and no u201Creason of stateu201D to cost the life and happiness of citizens. … Our fathers would have an economical government, even if grand people called it a parsimonious one, and taxes should be no greater than were absolutely necessary to pay for such a government. The citizen was to keep all the rest of his earnings and use them as he thought best for the happiness of himself and his family; he was, above all, to be insured peace and quiet while he pursued his honest industry and obeyed the laws. No adventurous policies of conquest or ambition … would ever be undertaken by a free democratic republic. Therefore the citizen here would never be forced to leave his family or to give his sons to shed blood for glory and to leave widows and orphans in misery for nothing. … It is by virtue of these ideals that we have been u201Cisolated,u201D isolated in a position which the other nations of the earth have observed in silent envy; and yet there are people who are boasting of their patriotism, because they say that we have taken our place now amongst the nations of the earth by virtue of this war. (u201CConquest of the United States by Spain.u201D)

This speech was delivered at the Mises Institute‘s conference on The Economics of Fascism.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; President of the Molinari Institute; Senior Scholar of the Ludwig von Mises Institute; and author of Reason and Value: Aristotle versus Rand. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

Libertarians are divided over the Supreme Court’s decision in Kelo v. New London to allow coerced property transfers to private parties to count as “public use.” No libertarian likes the decision as it stands (since, for one thing, it clearly authorises an expansion not only of State-level but of Federal eminent domain power); the disagreement is over what the Court should have done instead. Some libertarians (see, e.g., Richard Epstein and Sheldon Richman) think the Court should have protected private property owners from this expanded assault on their rights by striking down the New London statute; other libertarians (see, e.g., Stephan Kinsella and Ron Paul) think the Court should have declined, on federalist grounds, any jurisdiction over eminent domain at the State level.

I find myself in partial agreement and disagreement with both sides. Let me explain why.

First we need to distinguish the normative question Would it be it a good thing for the Supreme Court to strike down the New London statute? from the legal question Does the Constitution authorize the Supreme Court to strike down the New London statute? After all, there is no a priori guarantee that these two questions must have the same answer.

Second, the normative question must be disambiguated into two further questions: Should the Supreme Court’s policy in general be one that would lead it to strike down the New London statute? and Given the Supreme Court’s actual policy in general, would it have been good in this instance for them to strike down the New London statute? These questions might turn out to have distinct answers also.

Indeed, I shall defend the following answers to these questions:

• Does the Constitution authorize the Supreme Court to strike down the New London statute? — Yes.
• Should the Supreme Court’s policy in general be one that would lead it to strike down the New London statute? — No.
• Given the Supreme Court’s actual policy in general, would it have been good in this instance to strike down the New London statute? — Yes.

(I’ll be drawing on arguments I’ve previously developed here, here, and here.)

Interpreting the Constitution: A Spoonerite Approach

Let’s begin with the legal question. Those who deny that the Supreme Court had proper jurisdiction in Kelo point to the fact that the Fifth Amendment, which stipulates that private property not be “taken for public use, without just compensation,” was originally a restriction solely on Congress, and had no application at the State level. This is true enough; the question is whether Fifth Amendment protections were subsequently extended to the States by the Fourteenth Amendment, which forbids States to “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Historical evidence suggests that the authors of the “privileges and immunities” clause did not intend this provision to extend the entire Bill of Rights to cover the States; but as a Spoonerite, I think what matters for legal interpretation is not the intention of the authors but the intention of the document. This distinction is one that Lysander Spooner expounds at length in his 1860 treatise The Unconstitutionality of Slavery. A brief example should make it clear. Consider the case from Greek mythology of Oedipus, king of Thebes, who decrees that whoever has brought spiritual pollution upon the city through parricide and incest must be exiled. At the time he makes this decree, neither he nor anyone else realises that he, Oedipus, is the man who has committed parricide and incest. So in making this decree it is not the intention of Oedipus that he, Oedipus, be exiled. But once the truth comes to light, the only way to carry out the decree is to send Oedipus into exile; hence exiling Oedipus is what Spooner would call the intention of the decree, though not the intention of its author.

So in general, if legislators decree X without realising that X is in fact Y, then their decree must be interpreted as requiring Y even if the legislators never intended this. As I have written elsewhere:

If the law says that government employees must be paid in gold, then they may not be paid in iron pyrites, since iron pyrites is not in fact gold, even if those who wrote the law were ignorant of the difference. If the law says that fishermen may not hunt mammals, then in fact the law says they may not hunt dolphins, even if the lawmakers had thought dolphins were fish. Likewise, if the law says that involuntary servitude is forbidden, then the government may not conscript soldiers, since military conscription is in fact involuntary servitude, even if those who wrote the law did not recognize this. Or, as Spooner writes:

If … the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it. … If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing. So the best interpretation of a law may not be the one the authors intended. Of course the authors’ intent is relevant, because what their words mean depends on what they intend; the reason their term “gold” does not refer to iron pyrites is that they intend the term to refer to whatever is relevantly similar in deep explanatory structure to their paradigm samples of gold. But it is not this intention alone, but this intention in conjunction with possibly unrecognised facts of reality, that determines whether a particular chunk of material counts as gold — just as it is not the (conventionally defined) rules of chess alone, but those rules in conjunction with the actual moves and positions of the pieces on the board, that determine whether a checkmate has occurred — even if the players fail to notice the checkmate! (I here draw on the arguments of two philosophers who played a decisive role in overthrowing conventionalist theories of meaning in the 1970s: Saul Kripke, in Naming and Necessity, and Hilary Putnam, in Mind, Language, and Reality. Interestingly, their contributions were partly anticipated by Ayn Rand in her Introduction to Objectivist Epistemology; on this see my article “Reference and Necessity: A Rand-Kripke Synthesis?” forthcoming in the Journal of Ayn Rand Studies.)

So regardless of what the authors of the Fourteenth Amendment may have intended, if the best interpretation of “privileges and immunities of citizens of the United States” includes the rights enumerated in the Bill of Rights, then the extension of the entire Bill of Rights to cover the States is what that provision means. And it seems to me that this is indeed the most defensible interpretation. Where are the privileges and immunities of U.S. citizens to be found, if not among those rights guaranteed to U.S. citizens by the Constitution? And what could license interpreting the phrase to mean some of those rights rather than all of them? I conclude that the Fourteenth Amendment does extend the Fifth Amendment to govern the States, and so that the Supreme Court would have been within its Constitutional rights to strike down State-level legislation authorising compulsory property transfers to private parties.

It may be objected that the process by which the Fourteenth Amendment was originally ratified was illegitimate. That may well be so; but from my point of view it doesn’t much matter, since I think the process by which the entire Constitution was ratified to begin with was equally illegitimate. My present concern is with what the Constitution’s provisions mean, not with how they got into the Constitution in the first place or whether they are there legitimately.

I shall also leave aside — though it would be worth revisiting at some point — the question of whether the Fourteenth Amendment actually affects city ordinances (New London is of course a city, not a State) or only States, since it is only States that are mentioned in the Amendment. In any case, on my reading the Constitution does at least restrict the States’ powers of eminent domain.

Just Compensation, Spooner-Style

Indeed, not only does the Constitution authorise the Court to strike down the State-level use of eminent domain for private beneficiaries, but I will go further and say that it authorises the Court to strike down any and all State-level use of eminent domain, even for “public use.” Why? Well, the Fifth Amendment stipulates that private property cannot be taken for public use without just compensation. In order to know how to apply this provision, we need to know what “just compensation” is. But thanks to libertarian rights theory, we do know: what justice demands when property is sought is compensation sufficient to induce the owner to surrender it voluntarily. Hence the Fifth Amendment, properly interpreted, does not merely limit the exercise of eminent domain to “public use,” but forbids it entirely, by decreeing that government may not take private property except by voluntary sale.

Of course this is not the interpretation of “just compensation” that the authors of the Fifth Amendment intended; but then the language of the Fifth Amendment does not say to give property owners “compensation that we think is just.” They could have written that if they had so chosen; but instead they wrote that “just compensation” — i.e., whatever compensation is actually just — is what is required. Just as Oedipus, in decreeing that the parricide should be exiled, was thereby unintentionally decreeing his own exile, so the framers, in decreeing just compensation, were thereby unintentionally forbidding eminent domain entirely. And subsequently the authors of the Fourteenth Amendment unintentionally extended this prohibition to cover the States.

It’s important not to confuse this Spoonerite approach with the “living Constitution” approach, in which the original meaning of various Constitutional provisions is discarded in favour of newer meanings that have evolved over time. On the contrary, for Spoonerites the meaning of “just compensation” is exactly the same today as it was 200 years ago; the word “just” invokes the objectively discoverable nature of justice, which remains the same over time even if our understanding of it does not.

Legal philosopher David Lyons — who, by applying the Kripke-Putnam theory of reference to the realm of law, has developed an approach of constitutional interpretation strikingly like Spooner’s, at least in structure (not so much in content; Lyons is no libertarian) — makes the point, incidentally using the just compensation clause as his example:

Imagine that you and I disagree about the substantive requirements of social justice. We then differ as to how the concept of justice applies; we differ, that is, about the principles of justice. This is possible if the concept of justice admits of different interpretations, or competing conceptions. … Now consider a constitutional example. … a court applying the just compensation clause would not necessarily decide a case as the original authors would have done …. Instead, a court would understand the Constitution to mean precisely what it says and thus to require just compensation. A court would need to defend a particular conception of just compensation … against the most plausible alternatives. … Contested concepts do not seem confined to morality and law. Their properties are at any rate similar to those of concepts referring to natural substances or phenomena, such as water and heat. On a plausible understanding of the development of science, for example, the caloric and kinetic theories of heat are (or at one time were) competing conceptions of the concept heat. … If, as most people would agree, ‘heat’ refers to a determinate physical phenomenon, there can be, in principle, a best theory of heat. This implies that there can be a best conception of a contested concept. This suggests, in turn, that contested concepts in the Constitution might have best interpretations. … Now if the idea that the Constitution includes contested concepts is correct, then to apply the Constitution in terms of their best interpretation is, in effect, to apply doctrines whose application is called for by the original Constitution. But, just as interpretation of the concept heat requires more than mere reflection, any interpretation of this type inevitably draws upon resources that are neither implicit in the text nor purely linguistic. It …. requires that courts applying ‘vague clauses’ of the Constitution interpret ‘contested concepts,’ which requires reasoning about moral or political principles. (David Lyons, “Constitutional Interpretation and Original Meaning,” pp. 85—99; in Social Philosophy & Policy 4, no. 1 (Fall 1986), pp. 75—101.) This interpretation, of course, assumes that the word “just” in “just compensation” means what it ordinarily means: “in accordance with justice.” Stephan Kinsella, by contrast, has suggested to me that “just compensation” is simply a technical term for paying “fair market value” (he should probably say something like “prevailing market value,” since “fair” is going to raise the same issues that “just” does). Now I certainly agree that what the framers intended was probably the payment of prevailing market value; but I find it hard to believe that the phrase “just compensation” is so far a term of art that “just” has no independent meaning in it, just as “handle” has no independent meaning in the phrase “fly off the handle.”

Centralism and the Constitution

How much power, on my interpretation, does the Constitution grant the Supreme Court? On the one hand, quite a lot — since the best (i.e., the libertarian) interpretation of the Fourteenth Amendment’s guarantee of “equal protection of the laws” is going to “enact Mr. Herbert Spencer’s Social Statics” (in Justice Holmes’ famous phrase), thus authorising what I’ve elsewhere called “the wholesale imposition of libertarianism by the federal judiciary on the States.” (For recent defenses of such an approach see Randy Barnett’s book Restoring the Lost Constitution: The Presumption of Liberty and Damon Root’s article “Unleash the Judges: The Libertarian Case for Judicial Activism.”) On the other hand, less than might appear — since as I read the Constitution it authorises secession. (According to the Tenth Amendment, the States reserve all powers not granted; since nowhere in the Constitution is secession forbidden, it’s reasonable to infer that secession remains a reserved power.) This converts Constitutional guarantees of rights into something like club rules: States are required (by the Fourteenth Amendment) to abide by them so long as they remain within the union, but nothing forces them to remain.

This I think was Spooner’s reading also. It’s often assumed that Spooner must have undergone a radical change of mind between the apparently centralist Unconstitutionality of Slavery (which favours, and interprets the Constitution as authorising, a Federal ban on slavery in the States) and the apparently decentralist Constitution of No Authority (which defends Southern secession, and attacks the Constitution as a pseudo-contract unjustly imposed by the Union on the States). In fact the difference between the two works is not so large; already in The Unconstitutionality of Slavery Spooner appears to treat Federal jurisdiction over the States as conditional on the Union’s remaining a voluntary compact, when he writes:

As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it. … If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself. (This doesn’t mean that Spooner thought that slavery should be left undisturbed once a slave state has seceded; on the contrary, he advocated guerilla warfare against slaveholders.) And in The Constitution of No Authority Spooner is careful to explain that what he is attacking is the Constitution “not as I interpret it, but as it is interpreted by those who pretend to administer it,” adding that in his view “the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.” In short, Spooner’s position in both works is that the Constitution, properly interpreted, is a voluntary compact that mandates respect for libertarian rights but allows secession. (If there is a change of mind between the two works, it concerns not the interpretation of the Constitution, but rather the value, as a political strategy, of continuing to appeal to the Constitution: even if the Constitution has not “authorized such a government as we have had,” Spooner finally concludes, it has at least proved “powerless to prevent it,” and so is “unfit to exist.”)

Federalism: For and Against

Whatever the Constitution, properly interpreted, has to say about federalism, we still need to address the distinct question of what it ought to say about federalism. (Even though interpreting certain contested phrases in the Constitution requires drawing on the correct libertarian theory of justice, that does not imply that the best interpretation of the Constitution will inevitably be the most libertarian one. There just isn’t any way, for example, to interpret such provisions as “Congress shall have power to lay and collect taxes, duties, imposts, and excises” (Article I, Section 8) in a manner consistent with correct libertarian justice; the best interpretation of the word “taxes” is not “voluntary contributions.” Of course, one might interpret the Fifth Amendment’s just compensation clause as superseding this provision and annulling the taxing power; since it’s an amendment it automatically takes precedence over anything in the original document. Sadly, the Fifth Amendment, construed as a ban on taxation, is itself thus far amended by the Sixteenth.)

On this issue, I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights. As Isabel Paterson notes in God of the Machine: “The proper use of a necessary power and the proper agency for its use are entirely different questions.”

Now I would not oppose giving either the U.S. or the U.N. the power to impose libertarian standards on its members if this power could be guaranteed to be exercised in a reliably libertarian manner in actual practice; but what guarantees this? The power to impose libertarian standards is also the power to impose non-libertarian standards; as Barry Goldwater (or perhaps Karl Hess) famously remarked, “A government that is big enough to give you everything you want is big enough to take it all away.”

In any federal system, it is to be expected that at some times, or on some issues, the central government will be more libertarian than the member states, and that at other times, or on other issues, the member states will be more libertarian than the central government. If the central government could be counted on to be consistently more libertarian than the member states, then obviously the central government should have the power to strike down local legislation. If the member states could be counted on to be consistently more libertarian than the central government, then obviously the central government should not have the power to strike down local legislation. But in reality it’s inevitably going to be some of each; and there’s no way to rig the system so that the central government wins whenever it’s right and loses whenever it’s wrong. (One can of course write into the Constitution some such provision as “the central government shall have the power to strike down unjust legislation, and no power to strike down legislation that is just”; but such paper guarantees are of limited utility when the agency that has to obey them is the same agency that gets to interpret them.)

Since neither the central government nor the member states can be counted on to be consistently libertarian, I favour decentralisation simply because it allows for more competition: if Alabama passes a crummy law there’s the hope that I can move to some other State with better laws, whereas if the Federal judiciary imposes a crummy decision on the entire country then my ability to vote with my feet is much weaker. This is ultimately a reason for decoupling jurisdiction from geographical territory entirely; but, short of that, it’s at least a reason for confining decision-making power to the local level as far as possible. This is especially true if member states are denied the right to secede; but I think centralisation has its dangers even when secession is permitted, at least if the right of secession is limited to states rather than being extended (as ideally it should be) to individuals. (Even when the government of a member state consents to Federal requirements, that does not mean that all its citizens do.)

Hence I conclude that the Constitution, correctly interpreted, is more centralist than it should be. If the Fourteenth Amendment were being proposed today, I would not favour its adoption. Indeed, if the Constitution itself, with or without the Fourteenth Amendment, were being proposed today, I would not favour it; I would prefer the more decentralised Articles of Confederation (or better yet, market anarchy, but the Articles would be a good start).

So as a matter of general policy the Federal government ought to follow a hands-off policy toward State-level legislation. And in a world where federalism reigned as it should — a world in which libertarian activists could concentrate their energy at the local level — the Supreme Court would quite properly have refused to strike down local eminent-domain legislation.

In the actual world, however, where federalism does not remotely reign as it should, it is by no means clear that refusing to strike down local legislation is the decision we should hope for. If refusing to strike down the New London statute were the inauguration of a consistent decentralist policy, that would be one thing; but the Supreme Court has shown no such inclination in that direction. We’ve seen recently — in last month’s Raich v. Ashcroft, for example — that the Court is perfectly happy to override State-level legislation (and fairly libertarian legislation, at that) when it so chooses. So the price of the Court’s decision in Kelo — an increase in rights-violations, human suffering, and disruptions of people’s lives through increased use of eminent domain — is not, so far as I can see, compensated by any significant gain in decentralisation.

As I have written elsewhere:

[I]t is an anachronism to think of our State governments as in any serious sense counterweights to Federal tyranny. While Federal and State governments may clash from time to time … for the most part the State and Federal governments are entwined into a single criminal organisation that oppresses us. The States have become more akin to administrative departments within the Federal government than independent agents affiliated with it; the Federal government so regularly overrides the States that this latest issue is only a tiny drop in an enormous bucket. As a result, I’m more inclined to throw my strategic support to whichever head of the hydra is supporting the less oppressive policy on any given issue. In other words, now that the States no longer exist as independent political entities but have essentially been absorbed into the Central Leviathan, the question at issue in Kelo was basically whether branch A of the Central Leviathan should prevent branch B of the Central Leviathan from violating property rights. Under those circumstances, I’m inclined to answer yes.

So while I support decentralisation (and would prefer complete disunion), so long as the States show so little tendency even to seek greater independence but instead waddle eagerly to the Federal trough, I favour strategic support for the Bill of Rights, whether at the State or the Federal level.

So there’s my position: a “centralist” (though secessionist) interpretation of the Constitution, a “decentralist” prescription for general Supreme Court policy, and a “centralist” (though still secessionist) prescription for what Supreme Court decisions we should support under current conditions.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; Editor of the Journal of Libertarian Studies; President of the Molinari Institute; Adjunct Scholar of the Ludwig von Mises Institute; and author of Reason and Value: Aristotle versus Rand. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

Critics of the current rgime’s so-called “War on Terror” are often accused of having a “September 10th” or “pre-9/11″ mindset. (Our ever-articulate Prince President garbled both descriptions into the phrase “pre-September 10th mentality” during the first debate.) The suggestion is that everyone’s worldview should have been radically transformed by the events of September 11th; anyone whose worldview wasn’t so altered, anyone who continues to favour diplomacy over a resort to military force, must simply be blind to reality. But there’s a problem with this argument: it assumes that everyone’s worldview needed changing. After all, any worldview that was radically altered by the September 11th attacks must have been radically mistaken to begin with. But anyone whose understanding of the world was substantially correct would not have had his or her overall view of things shaken by those events. Why didn’t more of us (“us” being those of the anti-war/anti-state persuasion, whether “left” or “right”) abandon our way of thinking in response to 9/11? Because 9/11 didn’t teach us anything we didn’t already know. We’ve been saying for decades that the U.S. government’s arrogant interventions around the world have only been increasing the risk of blowback, and that the State, in the event of such blowback, would be as ineffective at protecting the civilian population as it is at everything else. The 9/11 attacks simply corroborated our “pre-9/11 mindset.” In 2000, for example — a year before 9/11 — the Mises Institute’s Jon Basil Utley was predicting that the United States’ disregard of international law was fueling a potential terrorist backlash. And the year before that, our own Lew Rockwell observed that thanks to its “foreign policy, imperial military reach, and global arrogance, the U.S. government is the most hated in the world,” so it’s “not surprising” that terrorists might “blame us for the actions of the government.” The Cato Institute also saw what was coming. In 1996, Cato analyst Stanley Kober wrote a rather moderate piece (referring, whether navely or diplomatically, to the U.S. government’s “noble intentions”) in which he warned of the rising terrorist threat from someone named Osama bin Laden, whose “motivation stems from the American assistance to Saudi Arabia when it was threatened by Iraq.” Noting that the United States “has been all but oblivious to the way some of its actions are perceived by ordinary Arabs and Muslims,” Kober suggested that terrorist “bombings in Saudi Arabia should not be viewed as isolated aberrations. … The danger for the United States is that it will also become the target of those extremists.” Two years later, in 1998, Cato’s Ivan Eland was explaining:

One of three terrorist attacks worldwide is directed against a U.S. target. And that’s not because the United States is a rich capitalist nation. There are plenty of countries that fit that description. It’s not because the United States exports its “decadent” culture overseas. Other nations export Western culture, and some of their exports are as “decadent” as or more “decadent” than those of the United States. No, terrorists attack the United States primarily for what it does, not what it is. In light of the fact that “[e]ven comparatively weak terrorist groups can now inflict massive damage on a superpower,” Eland argued that “the only viable way to significantly reduce the chances of a catastrophic attack” was for the U.S. government to “concentrate its efforts on minimizing the motivation for such attacks in the first place.” He concluded that “Americans should not have to live in fear of terrorism just so Washington’s foreign policy elite can attempt to achieve amorphous and ephemeral gains on the world chessboard.” And in 2000, Cato’s Doug Bandow wrote that rather than “[s]imply threatening the attackers,” the U.S. government should “review U.S. policies that encourage terrorism.” Quoting an al-Qaida representative’s remark that it is “time to take action against this iniquitous and faithless force the U.S. which has spread troops through Egypt, Yemen and Saudi Arabia,” Bandow concluded that the United States’ “promiscuous intervention in small but bitter foreign conflicts” and “[f]oolish attempts at nation-building risk turning all of America into a war zone.” What about the Libertarian Party? The 1990 party platform contained the following language: We call upon the United States government to cease all interventions in the Middle East, including military and economic aid, guarantees, and diplomatic meddling, and to cease limitation of private foreign aid, both military and economic. … We oppose the incorporation of the Persian Gulf and the countries surrounding it into the U.S. defense perimeter. We oppose the creation of new U.S. bases and sites for the pre-positioning of military material in the Middle East region. We condemn the stationing of American military troops in the Sinai peninsula as a trip-wire that could easily set off a new world war. And in 1988, I myself warned that “when we wade ignorantly into some third-world mess and throw our support behind the slimiest right-wing thug we can find, we not only betray our principles, we also create generations of fervent anti-Americans; Shahs beget Ayatollahs. It’s hard to see how the manufacture of enemies can be conducive to the national interest.” Of course it’s not only libertarians who were sounding the alarm; recognition of the threat that America’s foreign policy posed to its own civilians was being voiced across the political spectrum. On the left, Noam Chomsky worried in 1993 that the first “bombing of the World Trade Center in New York on February 26, which killed 6 people and caused great damage, may be a portent of things to come.” Until the American people “questioned crimes that their government commits against the people of the traditional colonial domains,” their acquiescence in their government’s foreign policy would continue to invite “further torment.” On the right, Pat Buchanan was asking in 1999: With the Cold War over, why invite terrorist attacks on our citizens and country, ultimately with biological, chemical or nuclear weapons? … [B]attling terrorism must go beyond discovering and disrupting it before it happens and deterring it with retaliation. We need to remove the motivation for it by extricating the United States from ethnic, religious and historical quarrels that are not ours and which we cannot resolve with any finality. And of course there were plenty of books available like Jonathan Kwitny’s 1984 Endless Enemies: The Making of an Unfriendly World and Chalmer Johnson’s 2000 Blowback: The Costs and Consequences of American Empire. Indeed, the Clinton administration’s own Hart-Rudman Commission noted in 1999 that the United States was widely perceived as “exercising its power with arrogance and self-absorption,” leading “[m]uch of the world [to] resent and oppose us,” and concluded that “[s]tates, terrorists, and other disaffected groups will acquire weapons of mass destruction and mass disruption, and some will use them.” The upshot? “Americans will likely die on American soil, possibly in large numbers.” Such was the “pre-9/11 mindset” of those who, today, criticise the “War on Terror” as likelier to provoke more terrorism than it prevents. The reason the 9/11 attacks didn’t shake our view of the world was that they were the most eloquent confirmation of that view. Those whose worldview was shaken by the 9/11 attacks must have had their heads in the sand. It may sound rude to say “we told you so,” but given that our opponents’ decision to ignore our warnings has led to thousands of deaths, perhaps a bit of rudeness is in order. We told them so. Of course, if truth be told, the 9/11 attacks didn’t have much of an effect on our opponents’ worldview either. The neoconservative D.C. establishment favours the same policies of imperial aggrandisement now that they favoured before 9/11; the attacks merely made it easier for them to get away with what they had been hankering after all along. We know from Richard Clarke and other White House insiders that plans for the invasions of Afghanistan and Iraq had already been drafted, and were simply awaiting a pretext. Not only freedom’s friends, but freedom’s foes too, are continuing in their pre-9/11 mindset.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; President of the Molinari Institute; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal Austro-Athenian Empire.

by Roderick T. Long by Roderick T. Long

In December 1851, French President Louis Bonaparte — the future Emperor Napolon III — seized power in a coup d’tat, in violation of his oath to uphold the Constitution. He arrested the legislature; imprisoned, deported, or executed his political opponents; and deterred future dissent by massacring civilians in the streets.

When he was done he held a referendum on his coup, and announced that the voters had vindicated his actions by a vote of approximately 7,500,000 to 640,000. Bonaparte’s argument, in effect, was that 7.5 million Frenchmen can’t be wrong.

In 1852 the liberal writer and former legislator Victor Hugo responded, from exile, with a book titled Napolon the Little, the first of his many broadsides against the new rgime. After casting doubt on the freedom of the elections and the genuineness of the official figures, Hugo added that even if the plebiscite had been procedurally flawless, an electoral majority had no competence to authorise Bonaparte’s crimes.

Hugo’s magnificent analysis is worth quoting at some length — both for its virtues and for its flaws:

You were captain of artillery at Berne, Monsieur Louis Bonaparte; you have necessarily a tincture of algebra and geometry. Here are some axioms of which you have probably an idea.

Two and two make four.

Between two given points the straight line is the shortest.

The part is less than the whole.

Now, get seven million five hundred thousand votes to declare that two and two make five, that the straight line is the longest road, that the whole is less than its part; get it declared by eight millions, by ten millions, by a hundred millions of votes, you will not have advanced a step. Well, then, now you are going to be surprised. There are axioms in probity, in honesty, in justice, as there are axioms in geometry; and the truths of morality are no more at the mercy of a vote than are the truths of algebra. The notion of good and evil cannot be resolved by universal suffrage. It is not given to a ballot to make the false become the true and the unjust the just. The human conscience cannot be put to the vote. …

Thus then, whatever be your figures, controverted or not, extorted or not, true or false, it little matters. Those who live with their eyes fixed on justice will say, and keep on saying that crime is crime, that perjury is perjury, that treason is treason, that murder is murder, that blood is blood, that dirt is dirt, that a rascal is a rascal, and that he who thinks he is copying Napoleon in miniature is copying Lacenaire [a famous murderer] at full length. They say this, and they will repeat it in spite of your figures, because seven million five hundred thousand votes weigh nothing against the conscience of the honest man; because ten millions, a hundred millions, the unanimity even of the human race voting en masse would not count before this atom, this particle, of God, — the soul of the just man; because universal suffrage, which has entire sovereignty over political questions, has no jurisdiction over moral questions.

I leave aside for the moment, as I said just now, your methods in connection with the ballot, — the bandages over the eyes, the gag in every mouth, the cannon on the public squares, the sabres drawn, the spies swarming, silence and terror leading the vote to the urn like a malefactor to the station-house, — I leave aside this. I suppose (I tell you again) universal suffrage to be free; true, pure, real, universal suffrage sovereign of itself as it ought to be; the journals in every hand, men and acts questioned and examined, placards covering the walls, free speech everywhere, light everywhere! Well, to such universal suffrage as this submit peace and war, the effective force of the army, public credit, public relief, the budget, the penalty of death, the irremovability of judges, the indissolubility of marriage, divorce, the civil and political status of women, gratuitous instruction, the constitution of the commune, the rights of labour, the salary of the clergy, free trade, railroads, the currency, fiscal questions, colonization, — all the problems whose solution does not bring with them its own abdication, for universal suffrage can do everything except abdicate, — submit these to it, and it will resolve them, doubtless with error, but with the totality of certitude which human sovereignty includes; it will resolve them authoritatively. Now, try to get it to settle the question whether John or Peter has done well or ill in stealing an apple from an orchard. There it halts; there it fails. Why? Is it because this is a lower question? No; it is because it is a higher one. All that constitutes the organization proper to societies, whether they be considered as territory, as commune, as state, as country, — all political, financial, and social matters depend on universal suffrage, and obey it; the smallest atom of the least moral question defies it. As with all that Hugo writes, this passage is beautiful in toto and true magnam partem. But it is worth focusing on the partem that is not true, because the mistake here is not merely Hugo’s, but is the fatal error on which 19th-century liberalism as a whole foundered and lost its way.

Hugo rightly and eloquently denies the authority of majority vote over moral questions. But he errs in thinking that such matters as u201Cpeace and war, the effective force of the army, public credit, public relief, the budget, the penalty of death, the irremovability of judges, the indissolubility of marriage, divorce, the civil and political status of women, gratuitous instruction, the constitution of the commune, the rights of labour, the salary of the clergy, free trade, railroads, the currency, fiscal questions, colonizationu201D are not u201Cmoral questions,u201D but are merely u201Cpolitical questions,u201D and as such do fall under democratic jurisdiction.

Yet in fact all these questions are mere variations on the question u201Cwhether John or Peter has done well or ill in stealing an apple from an orchard,u201D which Hugo admits lies outside the legitimate scope of democratic decision. All these so-called u201Cpolitical questionsu201D are at bottom questions as to whether one group of people may assault and/or plunder another group of people. Once it is admitted that John or Peter may not steal apples from the orchard owner, it is thereby admitted that a million Johns and Peters may not combine to tax the orchard owner, or conscript him into their pet projects, or otherwise restrict his liberty. Take moral questions out of the voters’ hands, and all these u201Cpolitical, financial, and social mattersu201D are removed as well. One cannot deny the majority jurisdiction over the axioms and yet leave them jurisdiction over the theorems.

Some of Hugo’s liberal contemporaries understood this. In the preceding three years, the case had been made — by Molinari’s Soires in 1849, by Bastiat’s The Law in 1850, by Spencer’s Social Statics in 1851. The latter, for example, ridicules u201Cthe monstrous, though generally-received doctrine, that a legislature may equitably take people’s property to such extent, and for such purposes, as it thinks fit — for maintaining state-churches, feeding paupers, paying schoolmasters, founding colonies,u201D and u201Cthe astounding belief that an act of parliament can abrogate one of Nature’s decrees — can, for instance, render it criminal in a trader to buy goods in France, and bring them here to sell, whilst the moral law says it is criminal to prevent him! As though conduct could be made right or wrong by the votes of some men sitting in a room in Westminster!u201D And all three saw that the proper liberal alternative to legalised plunder by the few was not legalised plunder by the many but an end to legalised plunder altogether.

But the vast mainstream of liberalism was to follow Hugo in embracing what Spencer would later call u201Cthe divine right of parliamentsu201D — the illusion that little if anything lies outside the legitimate sphere of democratic authority. Hugo was right: no mere vote can turn crime into innocence. But he failed to recognise the logical implications of his own view. Today only the libertarians (and not all of them!) still recognise that what is a crime if done by an individual is still a crime if done by the democratic state — that, in Rothbard’s words, u201Cregardless of popular sanction, War is Mass Murder, Conscription is Slavery, and Taxation is Robbery.u201D

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

by Roderick T. Long by Roderick T. Long

Thanks to Revi N. Nair for transcribing this talk from the 2004 Mises University.

I want to talk about some of the main objections that have been given to libertarian anarchism and my attempts to answer them. But before I start giving objections and trying to answer them, there is no point in trying to answer objections to a view unless you have given some positive reason to hold the view in the first place. So, I just want to say briefly what I think the positive case is for it before going on to defend it against objections.

THE CASE FOR LIBERTARIAN ANARCHISM

Problems with Forced Monopoly

Think about it this way. What’s wrong with a shoe monopoly? Suppose that I and my gang are the only ones that are legally allowed to manufacture and sell shoes — my gang and anyone else that I authorize, but nobody else. What’s wrong with it? Well, first of all, from a moral point of view, the question is: why us? What’s so special about us? Now in this case, because I’ve chosen me, it is more plausible that I ought to have that kind of monopoly, so maybe I should pick a different example! But still, you might wonder, where do I and my gang get off claiming this right to make and sell something that no one else has the right to make and sell, to provide a good or service no one else has the right to provide. At least as far as you know, I’m just another mortal, another human like unto yourselves (more or less). So, from a moral standpoint I have no more right to do it than anyone else.

Then, of course, from a pragmatic, consequentialist standpoint — well, first of all, what is the likely result of my and my gang having a monopoly on shoes? Well, first of all, there are incentive problems. If I’m the only person who has the right to make and sell shoes, you’re probably not going to get the shoes from me very cheaply. I can charge as much as I want, as long as I don’t charge so much that you just can’t afford them at all or you decide you’re happier just not having the shoes. But as long as you’re willing and able, I’ll charge the highest price that I can get out of you — because you’ve got no competition, nowhere else to go. You also probably shouldn’t expect the shoes to be of particularly high quality, because, after all, as long as they’re barely serviceable, and you still prefer them to going barefoot — then you have to buy them from me.

In addition to the likelihood that the shoes are going to be expensive and not very good, there’s also the fact that my ability to be the only person who makes and sells shoes gives me a certain leverage over you. Suppose that I don’t like you. Suppose you’ve offended me in some way. Well, maybe you just don’t get shoes for a while. So, there’s also abuse-of-power issues.

But, it’s just not the incentive problem, because, after all, suppose that I’m a perfect saint and I will make the best shoes I possibly can for you, and I’ll charge the lowest price I possibly can charge, and I won’t abuse my power at all. Suppose I’m utterly trustworthy. I’m a prince among men (not in Machiavelli’s sense). There is still a problem, which is: how do I know exactly that I’m doing the best job I can with these shoes? After all, there’s no competition. I guess I could poll people to try to find out what kind of shoes they seem to want. But there are lots of different ways I could make shoes. Some of them are more expensive ways of making them, and some are less expensive. How do I know, given that there’s no market, and there’s really not much I can do in the way of profit and loss accounting? I just have to make guesses. So even if I’m doing my best, the quantity I make, the quality I make may not be best suited to satisfy people’s preferences, and I have a hard time finding these things out.

Government Is a Forced Monopoly

So those are all reasons not to have a monopoly on the making and selling of shoes. Now, prima facie at least, it seems as though those are all good reasons for anyone not to have a monopoly in the provision of services of adjudicating disputes, and protecting rights, and all the things that are involved in what you might broadly call the enterprise of law. First of all there’s the moral question: why does one gang of people get the right to be the only ones in a given territory who can offer certain kinds of legal services or enforce certain kinds of things? And then there are these economic questions: what are the incentives going to be? Once again, it’s a monopoly. It seems likely that with a captive customer base they’re going to charge higher prices than they otherwise would and offer lower quality. There might even be the occasional abuse of power. And then, even if you manage to avoid all those problems, and you get all the saintly types into the government, there’s still the problem of how do they know that the particular way that they’re providing legal services, the particular mix of legal services they’re offering, the particular ways they do it are really the best ones? They just try to figure out what will work. Since there’s no competition, they don’t have much way of knowing whether what they’re doing is the most successful thing they could be doing.

So, the purpose of those considerations is to put the burden of proof on the opponent. So this is the point, then, when the opponent of competition in legal services has to raise some objections.

TEN OBJECTIONS TO LIBERTARIAN ANARCHISM

(1) Government Is Not a Coercive Monopoly

Now, one objection that’s sometimes raised isn’t so much an objection to anarchism as an objection to the moral argument for anarchism: well, look, it’s not really a coercive monopoly. It’s not as though people haven’t consented to this because there’s a certain sense in which people have consented to the existing system — by living within the borders of a particular territory, by accepting the benefits the government offers, and so forth, they have, in effect, consented. Just as if you walk into a restaurant and sit down and say, "I’ll have a steak," you don’t have to explicitly mention that you are agreeing to pay for it; it’s just sort of understood. By sitting down in the restaurant and asking for the steak, you are agreeing to pay for it. Likewise, the argument goes, if you sit down in the territory of this given state, and you accept benefits of police protection or something, then you’ve implicitly agreed to abide by its requirements. Now, notice that even if this argument works, it doesn’t settle the pragmatic question of whether this is the best working system.

But I think there is something dubious about this argument. It’s certainly true that if I go onto someone else’s property, then it seems like there’s an expectation that as long as I’m on their property I have to do as they say. I have to follow their rules. If I don’t want to follow their rules, then I’ve got to leave. So, I invite you over to my house, and when you come in I say, "You have to wear the funny hat." And you say, "What’s this?" And I say, "Well, that’s the way it works in my house. Everyone has to wear the funny hat. Those are my rules." Well, you can’t say, "I won’t wear the hat but I’m staying anyway." These are my rules — they may be dumb rules, but I can do it.

Now suppose that you’re at home having dinner, and I’m your next-door-neighbor, and I come and knock on your door. You open the door, and I come in and I say, "You have to wear the funny hat." And you say, "Why is this?" And I say, "Well, you moved in next door to me, didn’t you? By doing that, you sort of agreed." And you say, "Well, wait a second! When did I agree to this?"

I think that the person who makes this argument is already assuming that the government has some legitimate jurisdiction over this territory. And then they say, well, now, anyone who is in the territory is therefore agreeing to the prevailing rules. But they’re assuming the very thing they’re trying to prove — namely that this jurisdiction over the territory is legitimate. If it’s not, then the government is just one more group of people living in this broad general geographical territory. But I’ve got my property, and exactly what their arrangements are I don’t know, but here I am in my property and they don’t own it — at least they haven’t given me any argument that they do — and so, the fact that I am living in "this country" means I am living in a certain geographical region that they have certain pretensions over — but the question is whether those pretensions are legitimate. You can’t assume it as a means to proving it.

Another thing is, one of the problems with these implicit social contract arguments is that it’s not clear what the contract is. In the case of ordering food in a restaurant, everyone pretty much knows what the contract is. So you could run an implicit consent argument there. But no one would suggest that you could buy a house the same way. There are all these rules and things like that. When it’s something complicated no one says, "You just sort of agreed by nodding your head at some point," or something. You have to find out what it is that’s actually in the contract; what are you agreeing to? It’s not clear if no one knows what exactly the details of the contract are. It’s not that persuasive.

Okay, well, most of the arguments I’m going to talk about are pragmatic, or a mixture of moral and pragmatic.

(2) Hobbes: Government Is Necessary for Cooperation

Probably the most famous argument against anarchy is Hobbes. Hobbes’ argument is: well, look, human cooperation, social cooperation, requires a structure of law in the background. The reason we can trust each other to cooperate is because we know that there are legal forces that will punish us if we violate each other’s rights. I know that they’ll punish me if I violate your rights, but they’ll also punish you if you violate my rights. And so I can trust you because I don’t have to rely on your own personal character. I just have to rely on the fact that you’ll be intimidated by the law. So, social cooperation requires this legal framework backed up by force of the state.

Well, Hobbes is assuming several things at once here. First he’s assuming that there can’t be any social cooperation without law. Second, he’s assuming that there can’t be any law unless it’s enforced by physical force. And third, he’s assuming you can’t have law enforced by physical force unless it’s done by a monopoly state.

But all those assumptions are false. It’s certainly true that cooperation can and does emerge, maybe not as efficiently as it would with law, but without law. There’s Robert Ellickson’s book Order Without Law where he talks about how neighbors manage to resolve disputes. He offers all these examples about what happens if one farmer’s cow wanders onto another farmer’s territory and they solve it through some mutual customary agreements and so forth, and there’s no legal framework for resolving it. Maybe that’s not enough for a complex economy, but it certainly shows that you can have some kind of cooperation without an actual legal framework.

Second, you can have a legal framework that isn’t backed up by force. An example would be the Law Merchant in the late Middle Ages: a system of commercial law that was backed up by threats of boycott. Boycott isn’t an act of force. But still, you’ve got merchants making all these contracts, and if you don’t abide by the contract, then the court just publicizes to everyone: "this person didn’t abide by the contract; take that into account if you’re going to make another contract with them."

And third, you can have formal legal systems that do use force that are not monopolistic. Since Hobbes doesn’t even consider that possibility, he doesn’t really give any argument against it. But you can certainly see examples in history. The history of medieval Iceland, for example, where there was no one center of enforcement. Although there was something that you might perhaps call a government, it had no executive arm at all. It had no police, no soldiers, no nothing. It had a sort of a competitive court system. But then enforcement was just up to whoever. And there were systems that evolved for taking care of that.

(3) Locke: Three "Inconveniences" of Anarchy

Okay, well, more interesting arguments are from Locke. Locke argues that anarchy involves three things he calls "inconveniences." And "inconvenience" has a somewhat more weighty sound in 17th century English than it does in modern English, but still his point in calling it "inconveniences," which still is a bit weaker, was that Locke thought that social cooperation could exist somewhat under anarchy. He was more optimistic than Hobbes was. He thought, on the basis of moral sympathies on the one hand and self-interest on the other, cooperation could emerge.

He thought there were three problems. One problem, he said, was that there wouldn’t be a general body of law that was generally known, and agreed on, and understood. People could grasp certain basic principles of the law of nature. But their applications and precise detail were always going to be controversial. Even libertarians don’t agree. They can agree on general things, but we’re always arguing with each other about various points of fine detail. So, even in a society of peaceful, cooperative libertarians, there are going to be disagreements about details. And so, unless there’s some general body of law that everyone knows about so that they can know what they can count on being able to do and what not, it’s not going to work. So that was Locke’s first argument. There has to be a generally known universal body of law that applies to everyone that everyone knows about ahead of time.

Second, there is a power-of-enforcement problem. He thought that without a government you don’t have sufficiently unified power to enforce. You just have individuals enforcing things on their own, and they’re just too weak, they’re not organized enough, they could be overrun by a gang of bandits or something.

Third, Locke said the problem is that people can’t be trusted to be judges in their own case. If two people have a disagreement, and one of them says, "Well, I know what the law of nature is and I’m going to enforce it on you," well, people tend to be biased, and they’re going to find most plausible the interpretation of the law of nature that favors their own case. So, he thought that you can’t trust people to be judges in their own case; therefore, they should be morally required to submit their disputes to an arbitrator. Maybe in cases of emergency they can still defend themselves on-the-spot, but for other cases where it’s not a matter of immediate self-defense, they need to delegate this to an arbitrator, a third party — and that’s the state.

So Locke thinks that these are three problems you have under anarchy, and that you wouldn’t have them under government or at least under the right kind of government. But I think that it’s actually exactly the other way around. I think that anarchy can solve all three of those problems, and that the state, by its very nature, cannot possibly solve them.

So let’s first take the case of universality, or having a universally known body of law that people can know ahead of time and count on. Now, can that emerge in a non-state system? Well, in fact, it did emerge in the Law Merchant precisely because the states were not providing it. One of the things that helped to bring about the emergence of the Law Merchant is the individual states in Europe each had different sets of laws governing merchants. They were all different. And a court in France wouldn’t uphold a contract made in England under the laws of England, and vice versa. And so, the merchants’ ability to engage in international trade was hampered by the fact that there wasn’t any uniform system of commercial law for all of Europe. So the merchants got together and said, "Well, let’s just make some of our own. The courts are coming up with these crazy rules, and they’re all different, and they won’t respect each other’s decisions, so we’ll just ignore them and we’ll set up our own system." So this is a case in which uniformity and predictability were produced by the market and not by the state. And you can see why that’s not surprising. It’s in the interest of those who are providing a private system to make it uniform and predictable if that’s what the customers need.

It’s for the same reason that you don’t find any triangular ATM cards. As far as I know, there’s no law saying that you can’t have a triangular ATM card, but if anyone tried to market them, they just wouldn’t be very popular because they wouldn’t fit into the existing machines. When what people need is diversity, when what people need is different systems for different people, the market provides that. But there are some things where uniformity is better. Your ATM card is more valuable to you if everyone else is using the same kind as well or a kind compatible with it so that you can all use the machines wherever you go; and therefore, the merchants, if they want to make a profit, they’re going to provide uniformity. So the market has an incentive to provide uniformity in a way that government doesn’t necessarily.

On the question of having sufficient power for organizing for defense — well, there’s no reason you can’t have organization under anarchy. Anarchy doesn’t mean that each person makes their own shoes. The alternative to government providing all the shoes is not that each person makes their own shoes. So, likewise, the alternative to government providing all the legal services is not that each person has to be their own independent policeman. There’s no reason that they can’t organize in various ways. In fact, if you’re worried about not having sufficient force to resist an aggressor, well, a monopoly government is a much more dangerous aggressor than just some gang of bandits or other because it’s unified all this power in just one point in the whole society.

But I think, most interestingly, the argument about being a judge in your own case really boomerangs against Locke’s argument here. Because first of all, it’s not a good argument for a monopoly because it’s a fallacy to argue from everyone should submit their disputes to a third party to there should be a third party that everyone submits their disputes to. That’s like arguing from everyone likes at least one TV show to there’s at least one TV show that everyone likes. It just doesn’t follow. You can have everyone submitting their disputes to third parties without there being some one third party that every one submits their disputes to. Suppose you’ve got three people on an island. A and B can submit their disputes to C, and A and C can submit their disputes to B, and B and C can submit their disputes to A. So you don’t need a monopoly in order to embody this principle that people should submit their disputes to a third party.

But moreover, not only do you not need a government, but a government is precisely what doesn’t satisfy that principle. Because if you have a dispute with the government, the government doesn’t submit that dispute to a third party. If you have a dispute with the government, it’ll be settled in a government court (if you’re lucky — if you’re unlucky, if you live under one of the more rough-and-ready governments, you won’t ever even get as far as a court). Now, of course, it’s better if the government is itself divided, checks-and-balances and so forth. That’s a little bit better, that’s closer to there being third parties, but still they are all part of the same system; the judges are paid by tax money and so forth. So, it’s not as though you can’t have better and worse approximations to this principle among different kinds of governments. Still, as long as it’s a monopoly system, by its nature, it’s in a certain sense lawless. It never ultimately submits its disputes to a third party.

(4) Ayn Rand: Private Protection Agencies Will Battle

Probably the most popular argument against libertarian anarchy is: well, what happens if (and this is Ayn Rand’s famous argument) I think you’ve violated my rights and you think you haven’t, so I call up my protection agency, and you call up your protection agency — why won’t they just do battle? What guarantees that they won’t do battle? To which, of course, the answer is: well, nothing guarantees they won’t do battle. Human beings have free will. They can do all kinds of crazy things. They might go to battle. Likewise, George Bush might decide to push the nuclear button tomorrow. They might do all sorts of things.

The question is: what’s likely? Which is likelier to settle its disputes through violence: a government or a private protection agency? Well, the difference is that private protection agencies have to bear the costs of their own decisions to go to war. Going to war is expensive. If you have a choice between two protection agencies, and one solves its disputes through violence most of the time, and the other one solves its disputes through arbitration most of the time — now, you might think, "I want the one that solves its disputes through violence — that’s sounds really cool!" But then you look at your monthly premiums. And you think, well, how committed are you to this Viking mentality? Now, you might be so committed to the Viking mentality that you’re willing to pay for it; but still, it is more expensive. A lot of customers are going to say, "I want to go to one that doesn’t charge all this extra amount for the violence." Whereas, governments — first of all, they’ve got captive customers, they can’t go anywhere else — but since they’re taxing the customers anyway, and so the customers don’t have the option to switch to a different agency. And so, governments can externalize the costs of their going to war much more effectively than private agencies can.

(5) Robert Bidinotto: No Final Arbiter of Disputes

One common objection — this is one you find, for example, in Robert Bidinotto, who’s a Randian who’s written a number of articles against anarchy (he and I have had sort of a running debate online about this) — his principal objection to anarchy is that under anarchy, there’s no final arbiter in disputes. Under government, some final arbiter at some point comes along and resolves the dispute one way or the other. Well, under anarchy, since there’s no one agency that has the right to settle things once and for all, there’s no final arbiter, and so disputes, in some sense, never end, they never get resolved, they always remain open-ended.

So what’s the answer to that? Well, I think that there’s an ambiguity to the concept here of a final arbiter. By "final arbiter," you could mean the final arbiter in what I call the Platonic sense. That is to say, someone or something or some institution that somehow absolutely guarantees that the dispute is resolved forever; that absolutely guarantees the resolution. Or, instead, by "final arbiter" you could simply mean some person or process or institution or something-or-other that more or less reliably guarantees most of the time that these problems get resolved.

Now, it is true, that in the Platonic sense of an absolute guarantee of a final arbiter — in that sense, anarchy does not provide one. But neither does any other system. Take a minarchist constitutional republic of the sort that Bidinotto favors. Is there a final arbiter under that system, in the sense of something that absolutely guarantees ending the process of dispute forever? Well, I sue you, or I’ve been sued, or I am accused of something, whatever — I’m in some kind of court case. I lose. I appeal it. I appeal it to the Supreme Court. They go against me. I lobby the Congress to change the laws to favor me. They don’t do it. So then I try to get a movement for a Constitutional Amendment going. That fails, so I try and get people together to vote in new people in Congress who will vote for it. In some sense it can go on forever. The dispute isn’t over.

But, as a matter of fact, most of the time most legal disputes eventually end. Someone finds it too costly to continue fighting. Likewise, under anarchy — of course there’s no guarantee that the conflict won’t go on forever. There are very few guarantees of that iron-clad sort. But that’s no reason not to expect it to work.

(6) Property Law Cannot Emerge from the Market

Another popular argument, also used often by the Randians, is that market exchanges presuppose a background of property law. You and I can’t be making exchanges of goods for services, or money for services, or whatever, unless there’s already a stable background of property law that ensures us the property titles that we have. And because the market, in order to function, presupposes existing background property law, therefore, that property law cannot itself be the product of the market. The property law must emerge — they must really think it must emerge out of an infallible robot or something — but I don’t know exactly what it emerges from, but somehow it can’t emerge from the market.

But their thinking this is sort of like: first, there’s this property law, and it’s all put in place, and no market transactions are happening — everyone is just waiting for the whole legal structure to be put in place. And then it’s in place — and now we can finally start trading back and forth. It certainly is true that you can’t have functioning markets without a functioning legal system; that’s true. But it’s not as though first the legal system is in place, and then on the last day they finally finish putting the legal system together — then people begin their trading. These things arise together. Legal institutions and economic trade arise together in one and the same place, at one and the same time. The legal system is not something independent of the activity it constrains. After all, a legal system again is not a robot or a god or something separate from us. The existence of a legal system consists in people obeying it. If everyone ignored the legal system, it would have no power at all. So it’s only because people generally go along with it that it survives. The legal system, too, depends on voluntary support.

I think that a lot of people — one reason that they’re scared of anarchy is they think that under government it’s as though there’s some kind of guarantee that’s taken away under anarchy. That somehow there’s this firm background we can always fall back on that under anarchy is just gone. But the firm background is just the product of people interacting with the incentives that they have. Likewise, when anarchists say people under anarchy would probably have the incentive to do this or that, and people say, "Well, that’s not good enough! I don’t just want it to be likely that they’ll have the incentive to do this. I want the government to absolutely guarantee that they’ll do it!" But the government is just people. And depending on what the constitutional structure of that government is, it’s likely that they’ll do this or that. You can’t design a constitution that will guarantee that the people in the government will behave in any particular way. You can structure it in such a way so that they’re more likely to do this or less likely to do this. And you can see anarchy as just an extension of checks-and-balances to a broader level.

For example, people say, "What guarantees that the different agencies will resolve things in any particular way?" Well, the U.S. Constitution says nothing about what happens if different branches of the government disagree about how to resolve things. It doesn’t say what happens if the Supreme Court thinks something is unconstitutional but Congress thinks it doesn’t, and wants to go ahead and do it anyway. Famously, it doesn’t say what happens if there’s a dispute between the states and the federal government. The current system where once the Supreme Court declares something unconstitutional, then the Congress and the President don’t try to do it anymore (or at least not quite so much) — that didn’t always exist. Remember when the Court declared what Andrew Jackson was doing unconstitutional, when he was President, he just said, "Well, they’ve made their decision, let them enforce it." The Constitution doesn’t say whether the way Jackson did it was the right way. The way we do it now is the way that’s emerged through custom. Maybe you’re for it, maybe you’re against it — whatever it is, it was never codified in law.

(7) Organized Crime Will Take Over

One objection is that under anarchy organized crime will take over. Well, it might. But is it likely? Organized crime gets its power because it specializes in things that are illegal — things like drugs and prostitution and so forth. During the years when alcohol was prohibited, organized crime specialized in the alcohol trade. Nowadays, they’re not so big in the alcohol trade. So the power of organized crime to a large extent depends on the power of government. It’s sort of a parasite on government’s activities. Governments by banning things create black markets. Black markets are dangerous things to be in because you have to worry both about the government and about other dodgy people who are going into the black market field. Organized crime specializes in that. So, organized crime I think would be weaker, not stronger, in a libertarian system.

(8) The Rich Will Rule

Another worry is that the rich would rule. After all, won’t justice just go to the highest bidder in that case, if you turn legal services into an economic good? That’s a common objection. Interestingly, it’s a particularly common objection among Randians, who suddenly become very concerned about the poor impoverished masses. But under which system are the rich more powerful? Under the current system or under anarchy? Certainly, you’ve always got some sort of advantage if you’re rich. It’s good to be rich. You’re always in a better position to bribe people if you’re rich than if you’re not; that’s true. But, under the current system, the power of the rich is magnified. Suppose that I’m an evil rich person, and I want to get the government to do something-or-other that costs a million dollars. Do I have to bribe some bureaucrat a million dollars to get it done? No, because I’m not asking him to do it with his own money. Obviously, if I were asking him to do it with his own money, I couldn’t get him to spend a million dollars by bribing him any less than a million. It would have to be at least a million dollars and one cent. But people who control tax money that they don’t themselves personally own, and therefore can’t do whatever they want with, the bureaucrat can’t just pocket the million and go home (although it can get surprisingly close to that). All I have to do is bribe him a few thousand, and he can direct this million dollars in tax money to my favorite project or whatever, and thus the power of my bribe money is multiplied.

Whereas, if you were the head of some private protection agency and I’m trying to get you to do something that costs a million dollars, I’d have to bribe you more than a million. So, the power of the rich is actually less under this system. And, of course, any court that got the reputation of discriminating in favor of millionaires against poor people would also presumably have the reputation of discriminating for billionaires against millionaires. So, the millionaires would not want to deal with it all of the time. They’d only want to deal with it when they’re dealing with people poorer, not people richer. The reputation effects — I don’t think this would be too popular an outfit.

Worries about poor victims who can’t afford legal services, or victims who die without heirs (again, the Randians are very worried about victims dying without heirs) — in the case of poor victims, you can do what they did in Medieval Iceland. You’re too poor to purchase legal services, but still, if someone has harmed you, you have a claim to compensation from that person. You can sell that claim, part of the claim or all of the claim, to someone else. Actually, it’s kind of like hiring a lawyer on a contingency fee basis. You can sell to someone who is in a position to enforce your claim. Or, if you die without heirs, in a sense, one of the goods you left behind was your claim to compensation, and that can be homesteaded.

(9) Robert Bidinotto: The Masses Will Demand Bad Laws

Another worry that Bidinotto has — and this is sort of the opposite of the worry that the rich will rule — is: well, look, isn’t Mises right, that the market is like a big democracy, where there is consumer sovereignty, and the masses get whatever they want? That’s great when it’s refrigerators and cars and so forth. But surely that’s not a good thing when it’s laws. Because, after all, the masses are a bunch of ignorant, intolerant fools, and if they just get whatever laws they want, who knows what horrible things they will make.

Of course, the difference between economic democracy of the Mises sort and political democracy is: well, yeah, they get whatever they want, but they’re going to have to pay for it. Now, it’s perfectly true that if you have people who are fanatical enough about wanting to impose some wretched thing on other people, if you’ve got a large enough group of people who are fanatical enough about this, then anarchy might not lead to libertarian results.

If you live in California, you’ve got enough people who are absolutely fanatical about banning smoking, or maybe if you’re in Alabama, and it’s homosexuality instead of smoking they want to ban (neither one would ban the other, I think) — in that case, it might happen that they’re so fanatical about it that they would ban it. But remember that they are going to have to be paying for this. So when you get your monthly premium, you see: well, here’s your basic service — protecting you against aggression; oh, and then here’s also your extended service, and the extra fee for that — peering in your neighbors’ windows to make sure that they’re not — either the tobacco or the homosexuality or whatever it is you’re worried about. Now the really fanatical people will say, "Yes, I’m going to shell out the extra money for this." (Of course, if they’re that fanatical, they’re probably going to be trouble under minarchy, too.) But if they’re not that fanatical, they’ll say, "Well, if all I have to do is go into a voting booth and vote for these laws restricting other people’s freedom, well, heck, I’d go in, it’s pretty easy to go in and vote for it." But if they actually have to pay for it — "Gee, I don’t know. Maybe I can reconcile myself to this."

(10) Robert Nozick and Tyler Cowen: Private Protection Agencies Will Become a de facto Government

Okay, one last consideration I want to talk about. This is a question that originally was raised by Robert Nozick and has since been pushed farther by Tyler Cowen. Nozick said: Suppose you have anarchy. One of three things will happen. Either the agencies will fight — and he gives two different scenarios of what will happen if they fight. But I’ve already talked about what happens if they fight, so I’ll talk about the third option. What if they don’t fight? Then he says, if instead they agree to these mutual arbitration contracts and so forth, then basically this whole thing just turns into a government. And then Tyler Cowen has pushed this argument farther. He said what happens is that basically this forms into a cartel, and it’s going to be in the interest of this cartel to sort of turn itself into a government. And any new agency that comes along, they can just boycott it.

Just as it’s in your interest if you come along with a new ATM card that it be compatible with everyone else’s machines, so if you come along with a brand new protection agency, it is in your interest that you get to be part of this system of contracts and arbitration and so forth that the existing ones have. Consumers aren’t going to come to you if they find out that you don’t have any agreements as to what happens if you’re in a conflict with these other agencies. And so, this cartel will be able to freeze everyone out.

Well, could that happen? Sure. All kinds of things could happen. Half the country could commit suicide tomorrow. But, is it likely? Is this cartel likely to be able to abuse its power in this way? The problem is cartels are unstable for all the usual reasons. That doesn’t mean that it’s impossible that a cartel succeed. After all, people have free will. But it’s unlikely because the very incentives that lead you to form the cartel also lead you to cheat on it — because it’s always in the interest of anyone to make agreements outside the cartel once they are in it.

Bryan Caplan makes a distinction between self-enforcing boycotts and non-self-enforcing boycotts. Self-enforcing boycotts are ones where the boycott is pretty stable because it’s a boycott against, for example, doing business with people who cheat their business partners. Now, you don’t have to have some iron resolve of moral commitment in order to avoid doing business with people who cheat their business partners. You have a perfectly self-interested reason not to do business with those people.

But think instead of a commitment not to do business with someone because you don’t like their religion or something like that, or they’re a member of the wrong protection agency, one that your fellow protection agencies told you not to deal with — well, the boycott might work. Maybe enough people (and maybe everyone) in the cartel are so committed to upholding the cartel that they just won’t deal with the person. Is that possible? Yes. But, if we assume that they formed the cartel out of their own economic self-interest, then the economic self-interest is precisely what leads to the undermining because it’s in their interest to deal with the person, just as it’s always in your interest to engage in mutually beneficial trade.

QUESTION PERIOD

Anyway, those are some of the objections and some of my replies, and I’ll open it up.

Q1: My chief concern about anarchism is: why can’t you say that government is just another division of labor? Because it could be that some people are better or possess natural capabilities that are more suited to ruling over others. I’m not saying anarchy cannot work, but solely from empirical evidence, the fact that none of the industrialized regions in the world are in a state of anarchy, nor have they ever been for long in a state of anarchy says something about perhaps the stability or viability of complex human societies in the present state. And also, going back to what I said earlier, you can conceive of the relationship between the ruler and the ruled as just another common division of labor. Some people possess leadership abilities that are better able to organize people than others. Some people lack that.

RL: On the division-of-labor point, to the extent the division of labor is voluntary — if you’re better at something-or-other than I am, and so you do it, and then I buy the services from you — as long as it’s voluntary, that’s fine. But when we’re talking about division of labor and some people are better at ruling than other people — well, if I consent to your ruling me — maybe I’m hiring you as my advisor because I think you’re better at making decisions than I am, so I make one last decision which is to hire you as my advisor, and from then on I do what you say — that’s not government; you’re my employee, you’re an employee that I follow very religiously. But, ruling implies ruling people without their consent. That the division of labor is beneficial to everyone involved doesn’t seem to apply in cases where one group is forcing the other to accept its services.

And on the question of why we don’t see any industrialized country that has anarchy — of course, we also don’t see any industrialized county that has monarchy. But then industrialized countries haven’t been around all that long. There was a time when people said every civilized country (or just about every civilized country) is a monarchy. You find people in the seventeenth and eighteenth centuries saying: look, all the civilized countries are monarchies; democracy would never work. And by saying democracy would never work, they meant not just that it would have these various bad results in the long run; they just thought it would completely fall apart into chaos in a matter of months. Whatever you may think of democracy, it was more viable than they predicted. It could last longer, at any rate, than they predicted. So, things are in flux. There was a time when it was all monarchies. Now it’s all semi-oligarchical democracies. The night is young.

Q2: Roderick, surely we all appreciate the wonderful work that you do here at the Mises Institute, but Ludwig von Mises wasn’t an anarchist. So, I was wondering if you could tell us more about your institute and the Molinari Institute.

RL: Mises wasn’t really a Misesian! [laughter] Well, I have my own think tank. It is somewhat smaller than this one. I’m not sure whether it has a physical size. It does consist of more than one person. The board of directors is three people. So, it’s three people plus a website. Someday it will rule the Earth — in an anarchic way. Right now mostly what it does is put up various libertarian and anarchist classics on the website. There’s an offshoot of it — the Molinari Society, which is the same three people plus one more. Insofar as, as Hayek said, social facts consist in people’s attitudes toward them, the more people who think that it exists, the more it exists. The whole thing exists a little bit more because we got affiliated with the American Philosophical Association. The Molinari Society is hosting a session at the American Philosophical Association meetings in December. So it is actually going to be a Molinari event in December involving the three-people-plus-another-one. So that’s the grand and glorious progress. Its mission is to overthrow the government. We’ve applied for tax-exempt status from the government. (We’ll see just how dumb they are! We worded the description somewhat differently when we sent in the forms.)

Q3: I was going to bolster the point you made about the Randian objection that market transactions require some sort of legal background to them. The fact that there are black markets belies this. If you’re a cocaine dealer and you get ripped off by your middle-man, you certainly can’t go to a court and say "Go arrest him, he didn’t give me the cocaine he was supposed to"…

RL: I’m sure someone’s tried it…

Q3: …Now, of course, this very easily can lead to violence, but don’t forget that there are people actively trying to stop you, not just that they’re not letting you arbitrate, they’re actively stopping you from doing it.

RL: David Friedman makes the argument that one of the main functions of the Mafia is to serve as something like a court system for criminals. That’s not all it does, but the Mafia takes an interest in what sorts of criminal goings-on are going on in its territory —because it wants its cut, but it also doesn’t want gangs having shoot-outs with each other in its territory. If you’ve got a conflict, you agreed to some kind of criminal deal with someone and they cheated you, and it happened in the jurisdiction of some particular Mafia group, they’ll take an interest in that as long as you’re providing your cut. If they’re not cooperating, the Mafia will act as something kind of court-like and police-like. They’re sort of cops for criminals.

Q4: What will prevent protection companies from becoming a protection racket?

RL: Well, other protection companies. If it succeeds in doing it, then it’s become a government. But during the time it’s trying to do it, it hasn’t yet become a government, so we assume there are still other agencies around, and it’s in those other agencies’ interest to make sure that this doesn’t happen. Could it become a protection racket? In principle, could protection agencies evolve into government? Some could. I think probably historically some have. But the question is: is that a likely or inevitable result? I don’t think so because there is a check-and-balance against it. Checks-and-balances can fail in anarchy just like they can fail under constitutions. But there is a check-and-balance against it which is the possibility of calling in other protection agencies or someone starting another protection agency before this thing has yet had a chance to acquire that kind of power.

Q5: Who best explains the origin of the state?

RL: Well, there’s a popular nineteenth-century theory of the origin of the state that you find in a number of different forms. It’s in Herbert Spencer, it’s in Oppenheimer, and you find it in some of the French liberals like Comte and Dunoyer, and Molinari — who wasn’t really French, he was Belgian ("I am not a Frenchie, I’m a Belgie!"). This theory — they had different versions of it, but it’s all pretty similar — was that what happens is that one group conquers another group. Often the theory was that a sort of hunter-marauder group conquers an agricultural group.

In Molinari’s version of it what happens is: first, they just go and kill people and grab their stuff. And then gradually they figure out: well, maybe we should wait and not kill them because we want them to grow more stuff next time we come back. So instead, we’ll just come and grab their stuff and not kill them, and then they’ll grow some more stuff, and next year we’ll be back. And then they think, well, if we take all their stuff, then they won’t have enough seed corn to grow it, or they won’t have any incentive to grow it — they’ll just run away or something — so we won’t take everything. And finally, they think: we don’t have to keep going away and coming back. We can just move in. And then gradually, over time, you get a ruling class and a ruled class. At first, the ruling class and the ruled class may be ethnically different because they were these different tribes. But even if, over time, the tribes intermarry and there’s no longer any difference in the compositions, they still have got the same structure of a ruling group and a ruled group.

So that was one popular theory of the origin of the state, or at least the origin of many states.

I think another origin you can see of some states or state-like things is in the same sort of situation but in cases where they succeed in fending off the invaders. Some local group within the invaded group says: we’re going to specialize in defense — we’re going to specialize in defending the rest of you guys against these invaders. And they succeed. If you look at the history of England, I think this is what happens with the English monarchy. Before the Norman conquest, the earliest English monarchs were war leaders whose main job was national defense. They had very little to do within the country. They were primarily directed against foreign invaders. But it was a monopoly. (Now, the question is how they got that monopoly. I’m not so sure.) But once they got it, they gradually started getting involved more and more in domestic control as well.

Q6: Hector, Murray’s story about Hector? It’s very much similar to this story and it’s on the web, and it’s just a beautiful story.

RL: Which story about Hector is this?

Q6: The first one about why do we have to leave, let’s just stay there…

RL: Oh, yeah.

Q6: Murray did a beautiful job on that, and I would recommend it.

RL: What’s that in?

Q6: It’s on LewRockwell.com.

RL: It’s one of the Rothbard articles on there? Okay.

Q6: I wanted to buttress your thesis in several ways. One, another argument in favor of anarchy is that if you really favor the government, you have to favor world government because right now there’s anarchy between governments, and we can’t have that if you want government. Very few people favor world government, and it’s incompatible with the case against anarchy.

RL: There has to be a final final arbiter.

Q6: Another buttress is the issue about negotiations. The way that the time zones came up and the way that the standard gauge for railroads came up was through negotiations between railroad companies.

RL: And the Internet. Some of that is legal, but other aspects are just customary.

Q6: And another support is this thing about the cartel. At one time the National Basketball Association had eight teams and they wouldn’t allow any other people to come in, so they started the ABA (the American Basketball Association, with the red-white-and-blue ball). So if you had this cartel that wouldn’t let other people in, they could start another cartel.

RL: What happened to them?

Q6: They eventually merged. Now there are like thirty teams in the NBA. And if that’s too few, yet another league can come up.

RL: The crucial point is that in the Austrian definition of competition it’s not number of competing firms, it’s the free entry. As long as it’s possible to start another one, that can have the same effect as actually doing it.

Q6: In addition to the dissolution of a cartel, you can have other cartels competing against the first cartel.

RL: Did the XFL have any good effect? [laughter]

Q6: I wanted to ask a question. In your answer to the first question, where you said you were appointing him as your guide — does this mean you take my side —

RL: No.

Q6: — on alienability?

RL: No, no. That’s why I said he was the employee rather than the owner. I believe in inalienable rights.

Q6: He’s an employee, yet you can’t fire him…

RL: No, I can fire him. He’s my advisor, I always will follow him — but I haven’t given up my right to fire him.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

by Roderick T. Long by Roderick T. Long

Author’s note: This article is a follow-up to my earlier article “The Athenian Constitution: Government by Jury and Referendum” and should be read in conjunction with it.

Some writers have so confounded government with society, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one ….

~ Thomas Paine, Common Sense (1776)

Great part of that order which reigns among mankind is not the effect of government. It has its origins in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. the mutual dependence and reciprocal interest which man has upon man, and all the parts of a civilized community upon each other, create that great chain of connection which holds it together. … In fine, society performs for itself almost everything which is ascribed to government.

~ Thomas Paine, Rights of Man (1791-92)

Did the Greeks Have Civil Society?

Thomas Paine’s distinction between government and society is fundamental to the liberal tradition — as is his preference for assigning a narrow scope to the former and a wide scope to the latter. In recent years, the term “civil society” has come to be applied to the vast array of voluntary, spontaneously evolved institutions intermediate between the individual and the state; in short, “civil society” today means roughly what Paine meant by “society.”1

It is often thought that the notion of an autonomous sphere of “civil society,” separate from and largely unregulated by the state, is one that has little or no application in the ancient Greek world. There, we are told, society and state were merged into one entity, the polis — a term which, we are told, cannot be translated as either “society” or “state,” since it was both. The polis, so the story goes, was an organic community whose authority governed every aspect of life; and people had no sense of their own individuality apart from their role in the polis. The only conception of “freedom” available to the Greeks was (according to, for example, Benjamin Constant’s famous essay “The Liberty of the Ancients Compared With That of the Moderns”) the freedom to participate in political life; but freedom in one’s day-to-day life was negligible and undesired.

Is this an accurate picture of Greek society? I do not think it is. Rather, it seems heavily influenced by the ideals of the Greek philosophers — particularly Plato (and to a lesser extent Aristotle). These thinkers did not draw a distinction between society and state; they advocated sweeping authority of political communities over their members; they saw the interests of the individual as organically united with the interests of society as a whole; and they attached little importance to individual liberty or autonomous spheres of voluntary activity. But were the philosophers mirroring the ideals of their society — or criticising them? By and large, these philosophers were deeply alienated from the cultures in which they lived. They were constructing ideals that they saw as antithetical to Greek society as it actually existed. It is therefore inadvisable to read their ideals into Greek social reality.

It is especially strange to accept as descriptive of ordinary life the philosophers’ ideal of an organic unity between self-interest and the public good. Even the most cursory reading of Greek history reveals people with a highly developed sense of their own individuality as persons distinct from the community and often with distinct interests as well. The pages of Thucydides’ History of the Peloponnesian War are filled with tales of citizens intriguing against or betraying their communities, or fleeing to start a new career elsewhere. Far from being happy cogs in the communitarian whole, Greeks seem to have been all too individualistic.

Students of Greek culture are of course not unaware of this phenomenon, but they tend to see it as simply the flip side of their major premise. Collective unity was the hallmark of Greek culture, and when it broke down, so did society in general. The counterpart to the social theories of Plato and Aristotle is the amoralism of Sophists like Thrasymachus, Antiphon, and Callicles, who saw human beings as naturally antisocial and competitive. The Sophist view is the distorted mirror image of the Platonic-Aristotelian view; and neither recognises Paine’s distinction between society and state. For Plato and Aristotle, humans are naturally social beings, and therefore the state is naturally ordained as well; for the Sophists, the state is an artificial contrivance, and therefore so is social cooperation in general. Paine’s view of social cooperation as natural and governmental restriction as artificial falls between the cracks.

But there was a third view in Greek society, differing from both the authoritarian collectivism of the philosophers and the nihilistic amoralism of the Sophists (both of whom tended toward oligarchy in their political sympathies). This third view was the ideology of the Greek democrats. No surviving philosophical text defends this view, and it must be reconstructed largely either from descriptions by its critics or from passing references in literary sources and legal documents. But this ideology was the one that achieved practical implementation in Athens (the polis we know the most about) as well as in other Greek democracies. Admittedly, we know rather little about the functioning of Greek oligarchies (the polis we know second most about, Sparta, was so distinctive and atypical that generalisations are risky); but an examination of democratic theory and practice reveals a picture of Greek society utterly at odds with the conventional view. The conception of freedom endorsed by democratic ideology was not simply the freedom to participate in political decision-making (though that was part of it) but, as Aristotle laments, the freedom to “do as one pleases.” Aristotle’s complaint, in the Politics, was that the democrats did not fund sufficient freedom in consenting to a legal framework, but also wanted considerable autonomy within that framework. Likewise, writers like Plato in the Republic, and the anonymous author (known as the “Old Oligarch”) of the pseudo-Xenophontic Constitution of the Athenians, criticise democracy for allowing excessive personal freedom, and placing insufficient stress on the respect owed by the lower orders to their social superiors. Democratic Athens in particular allowed considerable scope for private action free from governmental interference, both in market transactions (Athens was one of the chief commercial centers of the Mediterranean) and in expression of opinion (Athens was likewise a magnet for philosophers and poets from all over the Greek world).2 These ideals are confirmed in Pericles’ famous funeral oration, recorded (or invented?) by Thucydides:3

We do not get into a state with our next-door neighbour if he enjoys himself in his own way …. We are free and tolerant in our private lives; but in public affairs we keep to the law. … [E]ach single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and do this, moreover, with exceptional grace and versatility. … Future ages will wonder at us, as the present age wonders at us now. … Make up your minds that happiness depends on being free …. (Thucydides, II. 37-43)

What the Greeks meant by demokratia (literally, “people power”) encompassed not only popular participation in political institutions, but also the substantial independence of civil society from political governance.

Even the point about the untranslatability of polis is doubtful. As Hansen (1989) points out, resident aliens, lacking the right to participate in politics, were regarded as not being members of the polis; yet they were certainly members of society, often being deeply involved in the economic and cultural life of the city. Hence polis means “state” and not “society.” The democrats (in Athens and presumably elsewhere) had a perfectly good grasp of the difference between state and society, even if the philosophers did not.

The tendency to focus only on legally codified, governmental aspects of Athenian life has often led historians to severely underestimate the extent of freedom within civil society. For example, Cohen (1992) argues that the ancient Athenian economy has often been dismissed as unsophisticated because in fact so many transactions were in the “underground economy,” and so not recorded in official documents. Cohen (1992) and Hunter (1994) also show that historians have underestimated the extent of participation by women in Athenian economic life by focusing on “official” expectations rather than on actual practice: Cumulated, the evidence reveals that … women engaged in a whole series of transactions that mimicked those of men, as codified in law. Not only did they own property, including land, but they gave gifts to their children and drew up wills accepted as valued by those around them. Women’s authority to do so was neither granted, protected, nor prohibited by law. It was spontaneous and uncodified, exercised in the private sphere, a matter of family practice, being widely and publicly accepted outside the household as within the competence of women. (Hunter (1994), p. 29; cf. Cohen (1992), Chapter 4.) The Emergence of Democracy

The rise of democracy (in the Greek sense, including both popular participation in governance and the protection of civil society from such governance) was the result of trade. In an age when sea travel was easier, safer, and quicker than travel by land, Greece, with its peninsulas, islands, dominance in the Aegean, and strategic location in the eastern Mediterranean near the Hellespont, with access to the markets of southeastern Europe, northern Africa, and western Asia, was ideally suited to become a commercial society. Trade brought Greeks into frequent amicable contact with other cultures, thus promoting the cross-fertilisation of ideas that so deeply shaped the roots of Western culture: [O]ur Western civilization is the result of the clash, or confrontation, of different cultures …. Let us look for a moment at the origin of Greek philosophy and Greek science. It all began in the Greek colonies: in Asia Minor, in Southern Italy, and in Sicily. These are the places where the Greek colonists were confronted with the great civilizations of the East, and clashed with them, or where, in the West, they met Sicilians, Carthaginians, and Italians such as the Tuscans. (Popper (1994), p. 38) Perhaps even more importantly for our purposes, trade undermined the socioeconomic hierarchy of traditional aristocratic society. As Forrest (1975) has argued, in an analysis that deserves more attention than it has received, trade, and the increased prosperity it brought, had two important results. First, it caused a shift of wealth within the ruling class, as fortunes began to be accumulated by people in the lower ranks of the aristocracy, who now had the resources and influence to contemplate challenging the power of their superiors. Second, it brought higher living standards to the common people, thus creating a prosperous middle class whose members could now afford armour and weaponry (previously the exclusive prerogative of the wealthy nobility) and so had become a force to be reckoned with. In combination, these two factors meant that ambitious but low-ranking aristocrats had an incentive to enlist the military might of the common people on their side in their struggle to supplant the existing aristocratic ruler. To do so, they had to promise various concessions to the commoners, and whatever the sincerity of these promises, they had to make good on at least some of them, some of the time, in order to maintain their newly-won power. As a result, the intestine struggles within the aristocracy resulted in greater and greater rights being granted to the people, pushing all the Greek states in the direction of democracy. Some, like Athens, traveled all the way and became full-fledged democracies; others, like Corinth, traveled only part of the way and became oligarchies, though even oligarchies almost always had some avenue for popular participation.

One state, Sparta, became so alarmed at the process of transformation it was starting to undergo that it attacked the problem at its root by banning all commerce, whether in goods or in ideas; the result was a grim collectivist barracks that indeed knew no distinction between state and society — but Sparta always remained exceptional. Plato’s ideal polis was in large part modeled on Sparta, and he shared their hostility to commerce (though not their enthusiasm for imperialism or their denigration of philosophy). In Plato’s eyes, commerce catered to the base, appetitive part of the soul. Plato also was no enthusiast of competition; he reasoned (in Republic I) that since there is just one right way of doing things, all the wise people will do the same thing, so that it is only unwise people who try to outdo each other.4 In contrast, ordinary Greek mores placed a high value on competition (there were very few team sports in Greece, because they always wanted to know which individual was the best), and the poet Hesiod speaks for the majority in distinguishing healthy (market-oriented) from unhealthy (war-oriented) forms of rivalry: I see there is not only one Strife-brood on earth, there are two. One would be commended when perceived, the other is reprehensible, and their tempers are distinct. The one promotes ugly fighting and conflict …. But the other …. rouses even the shiftless one to work. For when someone whose work falls short looks towards another, towards a rich man who hastens to plough and plant and manage his household well, then neighbour vies with neighbour as he hastens to wealth: this Strife is good for mortals. (Hesiod, Works and Days.) The rise of commercial society thus brought liberal, democratic institutions in its train; and these institutions had a profound impact on the development of the Greek conception of rationality. In the jury courts and public assemblies of democratic and quasi-democratic states, success in arguing one’s case involved finding arguments that would appeal not simply to the quirks of the king or noble whose favour one sought to win, but to a diverse public audience. (Nor was the task of persuasion delegated to representatives — lawyers in the jury courts, legislators in the assembly — but was instead conducted directly, so ordinary citizens had to develop speaking skills.) This arguably led to the epistemological ideal that people’s opinions, to be justified, should be able to withstand intersubjective criticism and scrutiny, and appeal to objective and universal standards of public acceptance; it also led to the ethical ideal that (in contrast to the aristocratic glorification of violence reflected in the Homeric epic)5 persuasion rather than coercion was the appropriate mode of social interaction. In the words of the orator Lysias: They [= the founders of Athenian democracy] believed that it was the way of wild beasts to be forcibly ruled by one another, but that the proper way for men was to define justice by law, to convince by reason, and to serve both by their actions. I shall discuss three areas in which Athenian democracy assigned a substantial role to the spontaneous forces of society as opposed to the centralised mechanism of the state: banking, the arts, and the provision of legal services.

Private Banking in Athens

The importance of private banks (called trapezai) in the Athenian economy is only beginning to be recognized. Many historian have dismissed the trapezai as little more than pawnbrokers or coin-changers; but a closer examination of the evidence, thanks mainly to the research efforts of Cohen (1992), reveals that banks were crucial to the city’s ability to function as a center of international trade. At Athens, hundred of ship cargoes were required annually to satisfy Attica’s enormous need for food and other items. Virtually all of these cargoes were dependent on loans. These financings, together with the additional loans generated by the Piraeus’s dominant position as an entrepôt for the eastern Mediterranean, provided creditors with an opportunity to absorb over many transactions the risk of a total loss from the sinking of a single ship. (Cohen (1992), pp. 140-141.)

The bankers also expedited commerce … through credit-enhancement devices that utilized bank deposits in place of coins. … By guaranteeing payments of funds at far-off locations, the banks … allowed customers to avoid the dangers and inconvenience inherent in transporting a large amount of coins or bullion. Thus when Stratokles needed funds available at the distant Black Sea, to which he was about to journey, he was able to leave his own money on loan in Athens and carry instead a bank guarantee of payment of principal and interest on 300 Cyzicene staters. (Cohen (1992), pp. 15-16.) In short, the Athenian bank system allowed the citizens of Athens to participate in what classical liberals have called a “Great Society” of international exchange and cooperation.

The Athenian state pursued a policy of laissez-faire toward these banks, as indeed toward commercial transactions in general. The trapezai were unincorporated businesses operated by individual proprietors or partners, almost entirely free of governmental regulation; modern banks are almost always corporate institutions, invariably governed by official regulation. … At Athens, banking “powers” and business arrangements were determined without state interference — by economic, not legal, constraints. Governmental “charters” permitting specified activities, or limiting competition, were nonexistent. … In sharp contrast to virtually all modern systems … loans from the trapezai were explicitly independent of parochial legal governance. Indeed, concerning contractual provisions, Athenian law seems to have mandated the primacy of “whatever arrangements either party willingly agreed on with the other.” … In contractual contexts there is frequent reference to Athenian law mandating absolute government noninvolvement in the conditions and terms of nongovernmental dealings …. Financial arrangements were subject to no control other than that of market conditions. … Athenian bankers were free to vary the conduct of their operations …. No activity was governmentally proscribed, no activity was governmentally mandated. … [T]he absence of governmental restriction or economic monopoly … resulted in wide variance in the terms on which, and the mechanisms through which, bankers sought funds. (Cohen (1992), pp. 9, 41-44, 112.) Yet the state received no quid pro quo, no special favourable treatment, from the banks in exchange for this hands-off policy: Because of their perceived lack of commitment to repay loans, the city-states, including Athens itself, did not enjoy a favorable credit standing and consequently were able to borrow funds only “short term, accompanied by heavy security, [at] high interest, and [in] strange forms.” (Cohen (1992), p. 143.) Clearly, Athenian bankers regarded their economic freedom not as a conditional grant but as theirs by right, and were able to rely successfully on that expectation.

But trapezai were more than simply financial institutions with paying customers. They had a personal character as well. (As such, they had something in common with the eranoi, or mutual-aid societies, which also existed.) The banker’s personal network of friends and his prestige as a professional were as significant as even the possession of vast monetary resources. Indeed, banking was so intensely personalized at Athens that business and social relations tend to coalesce. … The son of Sopaios “used” the bank of Pasion: when a personal crisis arose … he immediately consulted with Pasion, for their relationship was such that he “trusted” the banker “exceedingly, not only about money, but about all other matters as well.” … Financial “use” of an individual implied close involvement with him in other aspects of life. … Demosthenes … describes, in a commercial context, the business-cum-social relationships involved in “using” (khrômenos) someone. (Cohen (1992), pp. 65-66.) The Athenian bank was a profit-driven, market phenomenon; yet at the same time it served a variety of social needs as well.6

Private Patronage of the Arts in Athens

We tend to think of Athens as a community in which the arts were paradigmatically public: both publicly funded and publicly consumed. For architecture and sculpture, Pericles’ grand public works come to mind. For the performing arts, the model case is the great dramatic festivals where citizens went to see the comedies of Aristophanes and Menander, and the tragedies of Aeschylus, Sophocles, and Euripides. These dramatic performances were embedded in a celebration both religious and civil, on public property and open to public view.

This is true enough, but hardly the whole story. In his dialogue Protagoras, Plato has Socrates give the following amusing description7 of his visit to the house of Callias, a wealthy Athenian who was hosting a number of prominent visiting Sophists (including Protagoras, Prodicus, and Hippias): I think that the porter … was annoyed at the throngs of people that the number of sophists was bringing to the house. At any rate, when we knocked at the door, he opened it and saw us. ‘Ah, sophists,’ he said; ‘he’s busy,’ and at the same time he slammed the door with both hands as hard as he could. We began knocking again, and he kept the door closed and said, ‘Didn’t you hear? He’s busy.’ ‘My dear sir,’ I said, ‘we haven’t come to see Callias, nor are we sophists. Don’t worry. We’ve come to see Protagoras. Just tell them we’ve come.’ So eventually, with great reluctance, the fellow opened the door to us.

When we came in we found Protagoras walking in the colonnade [with Callias and his relatives]. Those who were following them listening to the conversation seemed mostly to be foreigners — Protagoras collects them from every city he passes through, charming them with his voice like Orpheus, and they follow the sound of his voice quite spellbound — but there were some Athenians in the procession too. I was absolutely delighted by this procession, to see how careful they were that nobody ever got in Protagoras’ way, but whenever he and his companions turned round, those followers of his turned smartly outwards in formation to left and right, wheeled around and so every time formed up in perfect order behind him. …

And after him I recognized … Hippias of Elis, sitting in a chair in the opposite colonnade. … they seemed to be asking Hippias questions on science and astronomy, and he was sitting in his chair giving a detailed decision on every question. … Prodicus of Ceos was also in town. He was in a room which Hipponicus previously used as a store-room, but now because of the number of visitors Callias had cleared it out too and turned it into a guest-room. Prodicus was still in bed, wrapped up in a great many sheepskins and blankets, as far as I could see. … I was very eager to hear Prodicus — for I think that he is a wonderful man, and very learned — but his deep voice made such a booming noise in the room that the words themselves were indistinct. … We were all pleased at the prospect of hearing wise men talk …. (Plato, Protagoras 315c-371d.) As Plato’s tongue-in-cheek tone makes clear, he did not regard Callias’ salon as a particularly valuable contribution to the arts. Nevertheless, his account offers us an example of how private individuals used their wealth to act as patron to itinerant intellectuals, offering a forum where Athenians could come to hears them discourse on science and philosophy. Such thinkers sometimes charged a hefty fee for their lecture courses, but in a context like this, interested Athenians could evidently arrive uninvited and absorb culture for free. The audience received intellectual stimulation, the speakers received room and board, and the host received prestige and goodwill from his patronage.

Private Law in Athens

One of the most remarkable features of Athenian democracy is the extent to which legal services themselves (dispute resolution and enforcement) were the province of civil society rather than of the state. Laws were passe by the state (or at any rate through the state, via popular referendum), and applied by governmental courts (manned by juries). But there were no police, and no public prosecutors. All suits were treated as civil suits, prosecuted by the victim; offenses against the community as a whole were prosecuted by self-selected individuals on behalf of the larger society, rather like class-action suits today. (No distinction between crimes and torts was recognised.) And even before coming to court, litigants were asked to seek private arbitration, thus exhausting all avenues within civil society before turning to the state (rather the opposite of today’s practice): Private arbitration … had a long history, extending back to the time of Homer and Hesiod, before the emergence of the state …. It was a private mechanism evolved to serve the needs of a society where kinship and the reciprocal obligations of kin and friends predominated. With the emergence of the state, private arbitration did not disappear but continued in use. … [T]he courts were only a final stage in a complex disputing process which allowed, indeed encouraged, adjudication to coexist with arbitration and mediation. (Hunter (1994), p. 67.) But the most intriguing aspect of the Athenian “private law” system is the privatisation of enforcement: The ancient city-state had no police other than a relatively small number of publicly owned slaves at the disposal of the different magistrates …. [T]he army was not available for large-scale police duties [because it] was a citizen militia, in existence as an army only when called up for action against the external world. [Yet] a Greek city-state … was normally able to enforce governmental decisions …. (Finley (1994), pp. 18-24.)

Most of the major tasks of policing — investigation, apprehension, prosecution, and even in some cases enforcement of court decisions — fell to the citizens themselves. For private initiative and self-help were the rule. … Here punitive enforcement is not the result of coercion by a central authority but of autonomous self-regulation on the part of the community. … For many of the functions that the modern state now entrusts to bureaucracy, police, or judiciary were embedded in a variety of social institutions …. (Hunter (1994), pp. 3-5.)

Since there were no regular police in Athens, such street fights were not uncommon, and it lay with the spectators to decide who was in the right and restore order. … It is clearly recognised as a duty of bystanders to help any victim of violence; this was very necessary in a city so ill-policed as Athens, for the safety of the community depended upon active support of the law by all well-constituted citizens. … It will be noticed that the State made no provision for arrest and bail; these were private transactions. This led to abuses, such as … wrongful detention … but each man involved took care always to provide himself with witnesses …. There was no police-force; hence the bystanders took a lively interest. (Freeman (1963), pp. 105, 128, 177.) Even tax collection was privatised: From his own assets, the wealthy contributor of proeisphora paid immediately the total amount of eisphora due from a number of other taxpayers. In return, he was given the right … to recover his excess payment from the various obligors. (Cohen (1992), p. 197.) For many, this aspect of Athenian society will seem the most primitive and undesirable feature of the entire system. But government’s monopoly of force, like all monopolies, has a tendency toward inefficiency and abuse of power, so it should be no surprise that the privatisation of such legal services as adjudication and enforcement has its defenders today; see, for example, Bell (1991-92), Loan (1991-92), and Benson (1990). Hunter (1994) also argues that by assigning law enforcement to civil society, the Athenian system fostered ties of cooperation among its citizens: Private initiative and self-help were fundamental to policing Athens. This means that Athenian citizens participated to an unprecedented degree in the social control of their own society. Such a system of policing has much to tell us about the way in which that society functioned. For it indicates yet another sphere in which Athenians were bound to each other by ties of reciprocal dependency. In order to carry out the tasks of policing and law enforcement, they required a dependable network of kin and friends. … This helps to explain why Athenians tried at all costs to avoid quarrels with their fellow demesmen, who were generally synonymous with their neighbors. It was in their interest to sustain good relations with their neighbors …. (Hunter (1994), p. 149.) The Dark Side of Civil Society

In the three aspects of Athenian civil society that we have reviewed — banking, arts, and policing — the reliance on “friends” and “patrons” is crucial. One’s banker was not just an anonymous market participant, but a trusted advisor on whom one relied in times of crisis. Artistic and cultural events were conducted under the sponsorship of wealthy citizens. Finally, if one needed to execute a court judgment against a powerful neighbour, it would help to have wealthy and influential friends.

The worry I wish to consider is this: in a community that assigns so much responsibility to civil society, what is to prevent the phenomenon of patronage from translating itself into domination by a wealthy elite?

As I have written elsewhere:

The political communities of the classical world … had surprisingly weak and decentralized governments, with nothing we would recognize as a police force. Yet, notoriously, these city-states were class societies, in which powerful elites managed to maintain dominance. … Where did the power of the ruling class come from, if not from a powerful state? … [R]uling classes maintained their power through the device of patronage …. In effect, the wealthy classes kept control not through organized violence but by buying off the poor. Each wealthy family would have a large following of commoners who served their patrons’ interests (e.g., supporting aristocratic policies in the public assembly) in exchange for the family’s largesse. (Long (198), pp. 334-335.) As an example, the Athenian aristocrat Cimon used to open his fields and orchards to the free use of anyone who needed them; and this generosity was repaid by loyal political followers. Finley (1994) argues:

If Greek … aristocrats were neither tribal chieftains nor feudal war lords, then their power must have rested on something else … [namely,] their wealth and the ways in which they could disburse it. … [Solon established] the right given to a third party to intervene in a lawsuit on behalf of someone who had been wronged. … No classical state ever established a sufficient governmental machinery by which to secure the appearance of a defendant in court or the execution of a judgment in private suits. Reliance on self-help was therefore compulsory and it is obvious that such a situation created unfair advantages whenever the opponents were unequal in the resources they could command. The Solonic measure [was] designed to reduce the grosser disparities, characteristically by a patronage device rather than by state machinery. (Finley (1994), pp., 45, 107.) It was to check the power of the rich that the democratic regime relied on what strikes many today as one of its strangest features: sortition, or the selection of public officials by lot. For us, democracy is synonymous with elections; but the Greeks generally regarded elections as an oligarchic, anti-democratic stratagem, on the grounds that an election is most likely to be won by the candidate with the greatest visibility and the largest campaign chest, and so would be skewed in favour of the rich. Sortition was a means of enduring proportional representation.

Among other checks on the power of the rich was the prosecution for an illegal proposal (in case of conviction the proposal, if it had been passed into law, was automatically repealed; jury courts thus had the power of judicial review) and, most famously, the ostracism, in which the citizens could vote to expel from the city any person they chose, for any reason.

This last provision has been attacked as an example of majority rule gone mad:8

Though the anecdote may have been invented as a joke which related that an Athenian voted for the banishment of Aristides because he was tired of hearing Aristides called The Just, the thing was not impossible by the democratic system. In Roman law a man must be charged with a specified act having known penalties, and convicted on something more positive than opinion, to incur sentence. He could not be guilty for no cause. (Paterson (1993), Chapter 3.) But while I do not endorse the institution of ostracism, this criticism is unfair for two reasons. First, the Athenians were at least as committed to due process as the Romans were, and ostracism, far from being representative of democratic procedure generally, was the sole exception to the ordinary requirement of due process. Second, Paterson makes it sound as though Aristides was being ostracised for frivolous reasons. On the contrary, as I have pointed out elsewhere:

The farmer was not simply being cantankerous, envious, or malicious; when a prominent politician gets a name like “the Just” or “the Great” attached to his name, thus being treated with the kind of reverence and deference more appropriate to a king than to a fellow-citizen, from the Athenian point of view this is a danger sign that the individual is getting too powerful and poses a danger to his nation’s freedom. The formal ostracism was a kind of pre-emptive strike. (Long (1996a), p. 14.) The ancient opponents of democracy generally favoured what was called a “mixed constitution,” i.e., an amalgam of democratic and oligarchic features. (This was the favoured model of Thucydides, Aristotle, and Polybius, as well as of the later Plato; among its modern admirers are Machiavelli, Montesquieu, and Madison.) The supposed advantage of the mixed constitution was that it would balance the interests of the rich against those of the poor, rather than allowing either group to run roughshod over the other; such a balance was desirable both ethically (it being unjust for one group to dominate the other) and pragmatically (since a society could not long remain stable without attracting substantial support from both groups). The goal is laudable; but how well-suited are the means? In later centuries the favoured model of a mixed constitution was the Roman Republic; but by any objective standard its institutions were biased in favour of the upper class. This suggests that the advocates of the mixed constitution may have overcompensated for the power of the poor and undercompensated for the power of the rich; perhaps the Athenian democrats came closer to striking the right balance.

But this leaves us with a question. Those of us who call ourselves classical liberals are evidently the modern heirs of the Athenian democrats, favouring a radical and thoroughgoing redistribution of power from the state to civil society. Is there any limit to how far this redistribution should be pursued, and if not, what private mechanisms might be developed within civil society to replace the curbs on plutocracy that the Athenians built into the structure of their government?9

This paper was first presented at the Liberty Fund Conference on Civil Society, Arlington VA, 29 May 1998.

Notes

1 This was not the original meaning of the term. In Locke, for example, “civil society” means society organized as a state (almost the precise opposite of its current meaning). One participated in civil society insofar as one was a citizen. The present-day meaning is largely the result, ironically enough, of Marx’s influence (see “On the Jewish Question,” for example), and to a lesser degree Hegel’s.

The term “civil society” is sometimes used broadly, to cover all non-governmental aspects of society, including the market, and sometimes narrowly, to exclude both government and market. I shall be using it in the broad sense (which seems to be Marx’s meaning as well), since the distinction between market phenomena and other voluntary social interactions is not easily drawn. The narrow definition seems to be attractive primarily to communitarians who like intermediary institutions but remain hostile to the market. Paine’s use of “society” clearly follows the broad definition.

2 This freedom was not complete, of course, and Athens’ reputation for tolerance has been tarnished by the execution of Socrates. It should be noted, however, that this fact, though monstrously unjust, was a rather exceptional case, occurring under unusual circumstances (social panic in the aftermath of a devastating conquest, tyranny, and civil war).

3 See Kagan (1969) for an argument that “recorded,” while not precisely accurate, comes closer to the truth than “invented.”

4 In fairness to Plato, there is an individualistic side to this argument: he is criticising the tendency to view self-worth in comparative terms, in terms of getting the better of somebody else, rather than in terms of measuring up to one’s own standards.

5 Or depicted in it, anyway. It is far from obvious that the author(s) of Homeric epic shared the values of the protagonists whose exploits such epics chronicled.

6 This is another reason for preferring the broad to the narrow definition of civil society when analysing ancient Greece: the distinction between market and non-market aspects of the non-governmental sphere inevitably becomes blurred.

7 Perhaps an ironic “reply” to Aristophanes’ description of Socrates’ salon in the Clouds.

8 Though in fact Athens was never a pure majority-rule system. The ability of courts to strike down unconstitutional legislation was one departure from majoritarianism; another was the prohibition on laws specifying named individuals.

9 For some preliminary thoughts on this question, see Long (1998).

Ancient Sources

• Anonymous. Dissoi Logoi.
• Aristophanes. Comedies.
• Aristotle. Constitution of the Athenians.
• —–. Politics.
• Demosthenes. Orations.
• Herodotus. Histories.
• Hesiod. Works and Days.
• Isocrates. Orations.
• Lysias. Orations.
• Menander. Comedies.
• “Old Oligarch.” [pseudo-Xenophon.] Constitution of the Athenians.
• Plato. Dialogues.
• Plutarch. Parallel Lives.
• Polybius. Histories.
• Solon. Poems.
• Thucydides. History of the Peloponnesian War.
• Xenophon. Constitution of the Lacedaemonians.
• —–. Estate Manager (Oeconomicus).
• —–. Hellenica.
• —–. Recollections of Socrates.
• —–. Resources of Athens (Poroi).

Modern Sources

• Bell, Tom W. 1991-92. “Polycentric Law.” Humane Studies Review 7, no. 1.
• Benson, Bruce. 1990. The Enterprise of Law: Justice Without the State. Pacific Research Institute, San Francisco.
• Boardman, John; Griffin, Jasper; and Murray, Oswyn, eds. 1986. The Oxford History of the Classical World. Oxford University Press, Oxford.
• Cohen, Edward E. 1992. Athenian Economy and Society: A Banking Perspective. Princeton University Press, Princeton.
• Constant, Benjamin. 1988. “The Liberty of the Ancients Compared With That of the Moderns.” In Biancamaria Fontana, ed., Benjamin Constant: Political Writings. Cambridge University Press, Cambridge.
• Cox, Cheryl Anne. 1998. Household Interests: Property, Marriage Strategies, ad Family Dynamics in Ancient Athens. Princeton University Press, Princeton.
• Finley, M. I. 1969. Aspects of Antiquity: Discoveries and Controversies. Viking Press, New York.
• —–. 1983. Economy and Society in Ancient Greece. Penguin, London.
• —–. 1983. The Ancient Economy. London.
• —–. 1994. Politics in the Ancient World. Cambridge University Press, Cambridge.
• Forrest, W. G. 1975. The Emergence of Greek Democracy: 800-400 BC. McGraw-Hill, New York.
• Freeman, Kathleen, ed. 1963. The Murder of Herodes and Other Trials from the Athenian Law Courts. Hackett Publishing Company, Indianapolis.
• Hammond, N. G. L., and Scullard, H. H., eds. 1970. The Oxford Classical Dictionary. 2nd ed. Oxford University Press, Oxford.
• Hansen, Mogens H. 1989. “Was Athens a Democracy?” Historisk-Filosofiske Meddelelser 59.
• —–. 1991. The Athenian Democracy in the Age of Demosthenes: Structure, Principles and Ideology. Basil Blackwell, Oxford.
• Hanson, Victor Davis. 1995. The Other Greeks: The Family Farm and the Agrarian Roots of Western Civilization. Free Press, New York.
• Hunter, Virginia J. 1994. Policing Athens: Social Control in the Attic Lawsuits, 420-320 B.C. Princeton University Press, Princeton.
• Jones, A. H. M. 1957. Athenian Democracy. Oxford University Press, Oxford.
• Kagan, Donald. 1969. The Outbreak of the Peloponnesian War. Cornell University Press, Ithaca.
• —–. 1974. The Archidamian War. Cornell University Press, Ithaca.
• —–. 1981. The Peace of Nicias and the Sicilian Expedition. Cornell University Press, Ithaca.
• —–. 1987. The Fall of the Athenian Empire. Cornell University Press, Ithaca.
• Lang, Mabel. 1987. The Athenian Citizen. American School for Classical Studies at Athens, Princeton.
• Loan, Albert. 1991-92. ” Institutional Bases of the Spontaneous Order: Surety and Assurance.” Humane Studies Review 7, no. 1.
• Long, Roderick T. 1996a. “The Athenian Constitution: Government by Jury and Referendum.” Formulations 4, no. 1 (Autumn 1996), pp. 7-23. 35.
• —–. 1996b. “Aristotle’s Conception of Freedom.” Review of Metaphysics 49 (June 1996), pp. 775-802.
• —–. 1998. “Toward a Libertarian Theory of Class.” Social Philosophy and Policy 15, no. 2 (Summer 1998), pp. 303-349.
• MacDowell, Douglas M. 1978. The Law in Classical Athens. Cornell University Press, Ithaca.
• Mayhew, Robert. 1997. Aristotle’s Criticism of Plato’s Republic. Rowman & Littlefield, Lanham.
• Miller, Fred D., Jr. 195. Nature, Justice, and Rights in Aristotle’s Politics. Oxford University Press, Oxford.
• Ober, Josiah. 1989. Mass and Elite in Democratic Athens: Rhetoric, Ideology, and the Power of the People. Princeton University Press, Princeton.
• Parker, Meg. 1973. Socrates and Athens. Bristol Classical Press, Bristol.
• Paterson, Isabel. 1993. The God of the Machine. 2nd ed. Transaction Publishing, New Brunswick.
• Popper, Karl. 1994. The Myth of the Framework: In Defence of Science and Rationality. Routledge, London.
• Tandy, David W. 1997. Warriors Into Traders: The Power of the Market in Early Greece. University of California Press, Berkeley.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

“Each single one of our citizens, in all the manifold aspects of life,
is able to show himself the rightful lord and owner of his own person,
and do this, moreover, with exceptional grace and exceptional versatility.”
~ Perikles (c. 495—429 BC)

Athens: A Neglected Model

Those engaged in the project of designing a constitution for a new libertarian nation can learn from the example of previous free or semi-free nations. In previous issues of Formulations we have accordingly surveyed sample constitutions ranging from the mediæval Icelandic system of competing assemblies to the U. S. Articles of Confederation. One example that is not often considered when libertarians discuss constitutional design is ancient Athens.

In a way this is not surprising. Athens in the fifth and fourth centuries BC is famous for being the purest, most extreme form of democracy in human history. Most libertarians get understandably nervous at the thought of unlimited majority rule. Moreover, the leading thinkers of the classical liberal tradition, from Montesquieu and Madison to Isabel Paterson, learned their Greek history from upper-class writers like Thucydides and Xenophon, Plato and Aristotle, Polybius and Plutarch, and absorbed from them their bias against the democratic institutions of Athens. (The anti-Athenian bias in Alexander Hamilton’s capsule history of the Peloponnesian War in the Federalist Papers is so extreme as to be ludicrous;1 and Madison is not much better.)

Nevertheless, the Athenian constitution deserves our consideration. In its heyday, Athens was the freest nation in the world. The Athenian definition of “liberty” was, in private matters, “living as one pleases,” and in public matters, “ruling and being ruled in turn.” By and large Athens lived up to these ideals. The Athenian statesman Perikles, in a famous funeral oration, boasted that in Athens no one even got sour looks from his neighbors if he chose to live his own life in his own way — an exaggeration, no doubt, but one with which Athens’ critics agreed, charging that Athens was, in Plato’s words, a supermarket where everyone could pick his own constitution, as if each person were living under a different regime of his own choosing. Unlike most Greek states, Athens exercised no control over education; to the consternation of the philosophers, who favored the Spartan system of compulsory state indoctrination, parents could arrange to have their children taught what and as they pleased. Moreover, the Athenians prided themselves on being as strict with their public officials as they were lenient toward their neighbors; according to Perikles, “we are free and tolerant in our private lives; but in public affairs we keep to the law.” (Thucydides, II. 37.)

Athens was especially famous for its intellectual freedom. This freedom had its limits, of course; unpopular thinkers, for example, were sometimes prosecuted for departing from religious orthodoxy (Sokrates being the most famous case). Still, Athenian freedom of thought and speech was robust enough to attract controversial thinkers and teachers from all over Greece. The Ionian cosmologist Anaxagoras had admittedly been run out of Athens for the crime of claiming that the sun was a giant burning rock rather than a god; but Plato tells us that Anaxagoras’ treatise was nonetheless readily available in the public marketplace for one drakhma per copy. Athenian playwrights like Aristophanes mercilessly lampooned the political leaders of the day, apparently with impunity. Philosophers freely taught courses, and published tracts, on the evils of democracy. The orator Demosthenes noted, in a remark later applied mutatis mutandis to the United States and the Soviet Union, that the crucial difference between Athens and Sparta was that one was free to praise the Spartan constitution in Athens, but not vice versa.

The execution of Sokrates, for undermining traditional values through his persistent questioning, was an unspeakable crime, but we must remember that someone like Sokrates would have been silenced much earlier in any other Greek state; and even in Athens it took the intense paranoia caused by a recent and bitter civil war to bring the lifelong gadfly at last to trial (where he lost by a slim margin only — 280 to 221 votes).

The Athenian cultural scene was one of intense intellectual ferment, one that laid the foundations for Western art, literature, and science for the next two and a half millennia; and Athenian curiosity, and enthusiasm for intellectual discussion and debate, were a byword. Even four centuries later, the apostle Luke could still say, with a slight sniff of disapproval, that the Athenians “spent their time in nothing else, but either to tell, or to hear some new thing.”

Nor was Athenian freedom confined to the marketplace of ideas. A commercial empire, Athens encouraged trade (unlike its rival, Sparta, where commerce and even money were banned). Its economic policies would hardly count as laissez-faire by libertarian standards, but they were liberal enough to attract merchants from all over the Mediterranean world. By Greek standards, Athens was a sparkling metropolis; the historian Thucydides remarked caustically that future generations, seeing the glorious ruins of majestic Athenian buildings, would overrate Athens’ importance (and underrate Sparta’s, since the Spartans put their money into instruments of conquest rather than into luxurious living). Athenian Magistrates, upon entering office, had to take a vow that no Athenian citizen’s land would be confiscated or redistributed.

The Athenian semi-free market unleashed an unprecedented flood of productive energy that transformed Greek civilization. The Korinthians, allies to Sparta and enemies of Athens, grumbled:
“An Athenian is always an innovator, quick to form a resolution and quick at carrying it out. … if their enterprise is successful, they regard that success as nothing compared to what they will do next. Suppose they fail in some undertaking; they make good the loss immediately by setting their hopes in some other direction. Of them alone it may be said that they possess a thing almost as soon as they have begun to desire it, so quickly with them does action follow upon decision. … seldom enjoying their possessions because they are always adding to them. Their view of a holiday is to do what needs doing; they prefer hardship and activity to peace and quiet. In a word, they are by nature incapable of either living a quiet life themselves or of allowing anyone else to do so.”

(Thucydides, I. 70.)

Above all, oppressive
oligarchies like Korinth and Sparta feared Athens’ tendency to export
democratic ideals, awakening democratic and revolutionary aspirations
in the common people throughout Greece. When Perikles called Athens
“a school for all Greece,” it may sound like idle patriotic piety
to us, but to Athens’ oligarchic neighbors it meant something definite
and worrisome. The Athenian empire, which the oligarchs constantly
denounced as tyrannical, seems to have been in many ways a liberatory
force, and one welcomed by the democratic elements in the areas where
it held sway (cf. Forrest (1975)) — which is not to say
that Athens never abused its imperial power!

We cannot forget, of course, that the benefits of the Athenian constitution were restricted to free adult males. Women and slaves were largely excluded. But this flaw is one that Athens shared with its neighbors. That women and slaves were oppressed in Athens is nothing remarkable; what is remarkable is the amount of freedom available to Athenian males who were not slaves.

How did Athens achieve such a free and prosperous society? What system of government made this possible? We call Athens a democracy, and think we know what we mean. After all, we all live under the same system, don’t we?

But to the Athenians, democracy (demo-kratia, “rule by the people”) meant something quite specific, and importantly different from the political system of any nation today. Athenians would have guffawed at the notion of calling the United States, for example, a democracy; by their standards it would have been a moderate oligarchy. What, then, was Athens’ democratic constitution, and how can we learn from it?

Origins of the Athenian Constitution

To begin with, Athens did not have a constitution in the sense of a written document. Rather, to speak of the Athenian constitution is to speak of the way the Athenian polity was constituted, i.e., what the structure of the political system was. (This was the original meaning of “constitution” in any case; only through etymological drift did a constitution come to be thought of as a written blueprint for a political structure, rather than as an instance of that structure.)

The Athenian constitution originated in class warfare. The three basic socioeconomic classes of Athenian society were the “Horsemen,” the “Yokemen,” and the “Menials.” The Horsemen were the richest class; they got their name, originally, from the fact that they could afford to own horses. At one time the Horsemen had been the aristocratic class, and Greek names with hippos, “horse,” in them (e.g., Hippias, Hipparchus, Pheidippides) continued to have an aristocratic flavor to them, just as last names beginning with “Von” or “De” do today; but as trade brought socioeconomic mobility, a fair number of nouveaux riches found their way into the Horsemen class. (In early times the top stratum of the Horsemen was distinguished as a separate class, the “500-measure-men,” based on the amount of grain their estates could produce; but this distinction became lost as its political significance faded, and I shall ignore it.) Composing the middle class were the Yokemen, deriving their name from the fact that they could afford a yoke of oxen. Unlike the independently wealthy Horsemen, the Yokemen had to work for a living, usually as merchants or farmers; the Greeks used oxen rather than horses for plowing, so horses were a luxury in peacetime, while an ox paid for itself in farm work and so was a more easily affordable possession. In the poorest class were the Menials, those who worked for hire rather than being self-employed like the Yokemen.

This socioecomonic division translated, at least roughly, into a military division. The Horsemen had horses, so they naturally supplied the ranks of the cavalry. The Yokemen, of moderate means, could afford heavy armor and weapons, and so made up the infantry. (In ancient times, soldiers were generally expected to provide their own equipment.) The Menials could not afford any military equipment, and so generally served as rowers in the navy.

The three classes contributed to the rise of the democracy in two ways. First, members of the ruling class (the Horsemen) often found it useful to grant political rights to the lower orders — first to the Yokemen, then eventually to the Menials — in order to win popular support in their intestine struggles for power with other members of the ruling class. Kleisthenes, the traditional founder of the Athenian democracy in 508, was simply the last in a long line of glad-handing aristocrats doling out political largess to the masses in exchange for their backing him against his aristocratic rivals; he shot himself and his entire class in the foot by finally giving the lower orders a few powers too many, thus making them rather than the Horsemen the effective masters of the state and so changing the rules of the game forever. (For a spirited analysis, see Forrest (1975).) Second, because Athens was predominantly a naval power, it depended more highly on its rowers than on its cavalry and infantry, and this gave the Menials crucial leverage against the Horsemen and Yokemen.

Thus, Athenian democracy was born. But how did it work?

The Legislative Branch

The Council

In the Athenian state, as in any other, we can distinguish legislative, judicial, and executive functions. The Athenian legislative branch consisted of two bodies, a Council of 500 and an Assembly of 6000. At first glance, this system resembles the American bicameral legislature, with a small, select upper house and a larger, more popular lower house. But this appearance is deceptive.

To begin with, neither the Council nor the Assembly consisted of elected representatives. The members of the Council were selected not by election but by sortition — i.e., by lot. In other words, the 500 Councillors were selected randomly from the (male) citizen population. (And no Councillor could serve more than two terms.)

The practice of selecting government officials randomly (and the Athenians developed some fairly sophisticated mechanical gadgets to ensure that the selection really was random, and to make cheating extremely difficult) is one of the most distinctive features of the Athenian constitution. We think of electoral politics as the hallmark of democracy; but elections were almost unknown at Athens, because they were considered paradigmatically anti-democratic. Proposals to replace sortition with election were always condemned as moves in the direction of oligarchy.

Why? Well, as the Athenians saw it, under an electoral system no one can obtain political office unless he is already famous: this gives prominent politicians an unfair advantage over the average person. Elections, they thought, favor those wealthy enough to bribe the voters, powerful enough to intimidate the voters, flashy enough to impress the voters, or clever enough to deceive the voters. The most influential political leaders were usually Horsemen anyway, thanks to their social prominence and the political following they could obtain by dispensing largesse among the masses. (One politician, Kimon, won the loyalty of the poor by leaving his fields and orchards unfenced, inviting anyone who was hungry to take whatever he needed.) If seats on the Council had been filled by popular vote, the Horsemen would have disproportionately dominated it — just as, today, Congress is dominated by those who can afford expensive campaigns, either through their own resources or through wealthy cronies. Or, to take a similar example, in the United States women have had the vote for over half a century, and yet, despite being a majority of the population, they represent only a tiny minority of elected officials. Obviously, the persistence of male dominance in the economic and social sphere has translated into women mostly voting for male candidates. The Athenians guessed, probably rightly, that the analogous prestige of the upper classes would lead to commoners mostly voting for aristocrats.

That is why the Athenians saw elections as an oligarchical rather than a democratic phenomenon. Above all, the Athenians feared the prospect of government officials forming a privileged class with separate interests of their own. Through reliance on sortition, random selection by lot, the Council could be guaranteed to represent a fair cross-section of the Athenian people — a kind of proportional representation, as it were. Random selection ensured that those selected would be representatives of the people as a whole, whereas selection by vote made those selected into mere representatives of the majority.

The Council’s duties were modest. It exercised some judicial and executive functions, but its main job was to prepare business for the Assembly (which met less often). The Council was convened by its President — a post that rotated among the membership. And I do mean rotated: “every fourth adult male Athenian citizen could say, ‘I have been for twenty-four hours President of Athens’ — but no Athenian citizen could ever boast of having been so for more than twenty-four hours.” (Hansen (1991), p. 314.)

The Assembly

Athenians did not trust their representatives; they gave them as little power as possible. While the Council was in charge of day-to-day business, all really important issues were decided not by representatives but by the people themselves (or as many as chose to show up) in the Assembly, of which every adult male citizen was a member. The Council could prepare legislation to be voted on in the Assembly, but the Assembly was not bound by the Council’s agenda.

The Athenians would have agreed wholeheartedly with Karl Hess’ critique of representative democracy:
“In politics a person is not a citizen if the person’s only function is to vote. Voters choose people who, in turn, act like citizens. They argue. They establish the forms within which people live their lives. They make politics. The people who merely vote for them merely make politicians. People who argue for their positions in a town meeting are acting like citizens. People who simply drop scraps of paper in a box or pull a lever are not acting like citizens; they are acting like consumers, picking between prepackaged political items. They had nothing to do with the items. All they can do is pick what is. They cannot actively participate in making what should be.”

(Hess (1995), p. 10.)

We should not
infer that everyone in the Assembly was equally active, however. As
in any group, there were some people who spoke all the time, some
who spoke once in a while, and some who never spoke but simply voted
yea or nay. Those who spoke all the time were called Rhetors, “speakers,”
and references to Athenian “politicians” or “political leaders” almost
always refer to this group of self-appointed leaders who generally
held no official position in the government. These Rhetors were prominent
citizens who had gained a popular following; they would rise in the
Assembly to propose a new statute or course of action, or to speak
for or against someone else’s proposal. The job was not risk-free;
no one could be made to answer for how they had voted in the
Assembly, but politicians could be prosecuted for making an unconstitutional
proposal, or for deceiving the people with false promises. (Imagine
what our own political system would look like if politicians could
be prosecuted for false promises!)

The meeting area for the Assembly seated 6000, whereas the number of those eligible to attend has been estimated at anywhere from 20,000 to 60,000. Obviously, not everyone could realistically hope to participate. (If the Athenians were reinstituting their system today, they might solve this problem through telecommunications technology and electronic voting — though they would have a healthy paranoia about the dangers of electronic vote-tampering.) One had to arrive early to be sure of a seat. But we should not picture the entire population of Athens battering on the gates of the Assembly, trying to get in and exercise their political rights. Athens was a large nation, comprising not only the city of Athens proper but the entire plain of Attika, and not all the citizens would have felt like trudging all the way in from the countryside before dawn to vote on trade agreements with some dinky island in the Aegean, or whatnot. (If the issue concerned going to war with Sparta or something of that sort, no doubt there was more interest.) In the early days of the Assembly, often not enough people showed up, and guards had to be sent to round up citizens in the marketplace in order to ensure a quorum for the Assembly. After pay was instituted for participating in the Assembly, this problem vanished! (Most state offices in Athens came with a salary, so that less affluent citizens could afford to participate without financial sacrifice; this was yet another stratagem to prevent the rich from dominating the political process.) It’s unlikely, then, that very many citizens who strongly wanted to participate in the Assembly were barred from doing so.

The ideological complexion of the Assembly might vary somewhat from session to session, depending on what else was going on. For example, Athens was a naval power, and preferred to fight its battles at sea rather than on land; during wartime, then, the fleet was more likely than the army to be away, and so Menials would then be under-represented in the Assembly in comparison with Horsemen and Yokemen. The absence of the rowers could thus give the Assembly a temporary oligarchic bias. Apart from the closing years of the Peloponnesian War, however, this does not seem to have been a major problem.

In the fifth century, the Assembly had complete power to pass or repeal legislation. In the fourth century, however, it was decided (by the Assembly itself) to limit this power in order to ensure greater constitutional stability (something that had been sorely lacking during the crisis-fraught closing years of the fifth century). A distinction was drawn between two kinds of legislative acts: decrees, and laws proper. A law, in the strict sense, had to be general in scope and open-ended in duration; anything else was a decree. So, for example, “everyone must wear polka dots from now on” would be a law, whereas “everyone must wear polka dots for the next five weeks” and “Demosthenes must wear polka dots from now on” would be decrees. In any conflict between a law and a decree, the law was taken to have precedence, regardless of which was passed first (just as, in the United States, constitutional law always overrides statute law — at least in theory!). The Assembly retained the power to pass and repeal decrees, but in order to make a change in the laws the Assembly now had to go through the Legislative Courts (about which more below).

The Judicial Branch

Arbitration

In Athens, most disputes were settled through arbitration rather than in the Jury Courts. There were two kinds of arbitration: public and private. In private arbitration, the two parties to the dispute would select a mutually agreeable third person or persons to decide the case; the results of private arbitration were recognized in the law as binding and final, and no appeal was permitted (unless malfeasance could be shown on the part of the arbitrator). Alternatively, the contending parties could bring their dispute to a state-appointed public Arbitrator. (The board of public Arbitrators consisted of all male citizens in their sixtieth year.) Because the disputants had no choice about which Arbitrator was assigned to them, and might end up with a dud, it was thought only fair in the case of public arbitration (unlike private arbitration) to allow the Arbitrator’s decision to be appealed to the Jury Courts. The choice between private arbitrators, public Arbitrators, and Jury Courts introduced a salutary competitive element into the Athenian judicial system.

The Jury Courts

The Jury Courts were also staffed by sortition, picked daily from a pool of 6000 volunteers (a favorite number with the Athenians, apparently). Juries were large, ranging from several hundred to several thousand depending on the seriousness of the charge to be considered; typical numbers were 401, 501, and 1001. The numbers were large in order to ensure a representative sample of the Athenian population (arguably an improvement over the current U. S. system), and uneven in order to avoid ties (though sometimes they used even-numbered juries, in which case a tie was interpreted as acquittal). Jurors were paid, once again to ensure an adequate representation of the poor on juries. There was no judge to restrict the jury’s power. No Athenian juror was ever subjected to compulsory empanelment, voir-dire, or sequestration, nor was any Magistrate empowered to decide what evidence the jury could or could not be allowed to see. Jurors, like voters in the Assembly (and unlike Rhetors and Magistrates) were not accountable for their decisions.

Potential jurors swore the following oath: “I will cast my vote in accordance with the laws and decrees passed by the Assembly and Council. On any point where the law is silent I will give judgment in accordance with my sense of what is most just, without favor or enmity. I will vote only on the matters raised in the charge, and I will listen impartially to accusers and defenders alike.” However, jurors could not be penalized for their vote — unless it could be shown that they had accepted bribes; but the practice of selecting juries randomly on the morning of the trial made bribery difficult, and the sheer size of juries limited the effectiveness of bribery in any case.

Many ancient observers considered that the Jury Courts, rather than the Council or Assembly, were the true governing powers in Athens. For one thing, the Jury Courts had the power of judicial review. The opportunity to exercise this power came when a politicians was prosecuted for having proposed an unconstitutional law or decree in the Assembly. A politician could be prosecuted whether his proposal had passed or not; but if it had indeed been enacted into law, and the proposer was found guilty, the law was automatically repealed. The juries made frequent use of this power: “The Supreme Court of the United States has had the power to test and overthrow Congressional Acts since 1803. In the period 1803—1986 that power was used 135 times: our sources show that at Athens that figure was nearly reached in two decades, let alone two centuries.” (Hansen (1991), p. 209.) Thus, a few hundred ordinary citizens could strike down, as unconstitutional, legislation enacted by an Assembly of 6000 people. The notion that Athenian democracy meant the unrestrained tyranny of the majority is clearly a myth. (The Athenian system also allowed for a second kind of judicial review, to be discussed below.)

There were no lawyers in an Athenian courtroom. The plaintiff and defendant each had to conduct their own case, though they could hire someone to help them write their courtroom speeches. (Only in rare cases was a third party allowed to speak on a disputant’s behalf.) Prosecutors could be prosecuted for bringing a frivolous charge (defined as one that could not win over even a substantial minority of the jurors). There was also no distinction between crimes and torts; all trials were treated as civil suits, with the victim (or, in murder cases, the victim’s family) rather than a public prosecutor directing the prosecution’s case. The closest equivalent to a crime/tort distinction was that between private prosecutions, where the aggrieved party was an individual citizen, and public prosecutions, where the aggrieved party was the city as a whole. Even in the latter case, though, the charge had to be initiated and argued by a private citizen on behalf of the city, so it was really more like what we would call a class-action suit.

Trials were swift, lasting no longer than a day. (Trials today can be criticized for excessive length, but to my mind the Athenian alternative goes too far in the opposite direction — as in fact Sokrates complained at his trial.) If the jury found the defendant guilty, the next phase of the trial concerned sentencing. Some crimes had penalties predetermined by law, but in most cases the choice was left up to the jury, thus avoiding the modern problem of having jury verdicts unduly influenced by the jury’s expectation of the likely severity of the penalty.

The procedure worked as follows: The prosecutor would propose a penalty, and the defendant would then respond with a counter-proposal, obviously of a lighter penalty. The jury would then choose between the two penalties. (Having the jury come up with a penalty of its own would have required discussion and debate impracticable under the circumstances, given the size of the jury.) Prosecutors were prevented from proposing excessively harsh penalties by the fear that this would make the jury more likely to choose the defendant’s milder proposal; defendants were likewise prevented from proposing excessively mild penalties by the fear that this would make the jury more likely to choose the prosecutor’s harsher proposal. This was an ingenious way of ensuring moderation in punishments. (Giving juries the power to decide both verdict and sentence also avoided the modern problem of sentences that defy the jury’s intentions, as in the recent case of the jurors who found the survivors of the Waco massacre not guilty of all but a handful of minor counts, only to learn with dismay that those few counts would send the Branch Davidians to prison for many years.)

The most common penalty was a fine. (In addition, the loser paid the winner’s court costs.) The severest penalties were enslavement and capital punishment (the latter being inflicted in a number of ways ranging from poison to crucifixion). Intermediate penalties were exile and “dishonor.” “Dishonor” is sometimes described by modern scholars as loss of citizenship, but it was actually much more severe; it meant exclusion from the political, economic, and religious life of Athenian society: dishonored citizens, unlike exiles, were allowed to continue residing in the city, but could not vote, hold office, serve on juries, set foot in the marketplace, or bring a case before a courtroom. (This last prohibition meant they were effectively outside the protection of the laws.) Imprisonment was unknown as a penalty. Athenian prisons were only temporary holding cells; thus Athens was spared the staggering expense of housing and feeding criminals for years on end. Any criminal too dangerous to be allowed on the streets was either executed or exiled.

Libertarians today are conflicted on the issue of jury rights. On the one hand, libertarians generally favor the jury’s right to nullify laws, as a check on legislative abuse of power. On the other hand, many libertarians of late have jumped on the conservative bandwagon of imposing limits on the amount of money juries can award in a civil suit. I myself referred to excessive jury awards as a “pressing problem” at the first FNF Forum:
“In recent years, absurdly high awards for damages have demonstrated the risks of a jury system, and the attractions of adjudication by experts. Yet juries remain an essential bulwark against state tyranny, a role government-approved experts are ill-suited to play. Competition among judicial systems would allow whichever mix of trial-by-jury and trial-by-experts best satisfied the needs of the public.”

(“The Rationale of a Virtual-Canton Constitution,” Proceedings of a Forum on the Subject of Constitutions, Autumn 1993.)

I still endorse
the point about the value of competition, but over the past few years
I have become convinced that the excessive-damages issue has been
overstated. The notorious examples of abuse appear to be exceptional,
and even many of those do not stand up to close scrutiny. (For example,
everyone knows about the woman who sued McDonalds because she spilled
some coffee and burned herself; but how many know that McDonalds had
received and ignored thousands of complaints about unusually hot coffee
(185°, enough to cause serious damage at even a second’s exposure)
prior to her case, or that her coffee was so hot that it burned through
three layers of skin, so that the woman required skin grafts and remains
permanently disfigured in the genital area?) In many cases, the “excessive
awards” are swallowed up by the government, and the victim never sees
a penny of it. Placing a cap on awards because of a handful of abuses
seems like exactly the sort of favoritism toward the rich that the
Athenians were above all concerned to prevent. I admit to some nervousness
about this conclusion, in the light of such recent anti-libertarian
trends as cigarette smokers suing tobacco companies and gunshot victims
suing arms manufacturers; but I would prefer to address this problem
through legislation defining product liability so as to exclude liability
for defects that are common knowledge (e.g., the addictive and carcinogenic
properties of tobacco) or for “defects” inherent in the proper as-advertised
good working order of the product (e.g., the fact that you can injure
or kill people by shooting a gun at them), rather than through putting
caps on jury awards.

The rule of evidence is a particularly delicate issue for libertarians. On the one hand, the idea of a dangerous criminal getting off on a technicality is distasteful. On the other hand, giving law enforcement officials carte blanche to violate the law goes against everything we stand for. Yet the judge’s power to rule on the admissibility of evidence is being increasingly abused, and may be a luxury we can no longer afford. Two recent examples of this:
1) During the O. J. Simpson trial, the jury was allowed to learn that the police detective who found the main evidence against Simpson had lied about using racial epithets — but they were not allowed to learn that he was a virulent racist who had bragged on tape about planting evidence and beating up minorities. I did not follow the Simpson case closely enough to have any opinion as to what verdict the jury should have reached (I may be the only person in America without such an opinion!), but it seems to me that when the main evidence against a black defendant depends on the testimony of a man who says all blacks should be killed, and who admits having planted evidence in the past, that is clearly relevant to the defense’s case, and something the jury ought to be told — but the judge decided to exclude the tape.

2) Several years ago in Massachusetts a Christian Science family was prosecuted for having relied on Christian Science treatment rather than medical care for an ill child who subsequently died. That sort of case raises complicated legal, moral, scientific, and religious issues which I won’t address now. What concerns me at present is the fact that there was a Massachusetts statute on the books which specifically exempted Christian Scientists from the requirement that parents provide their children with medical care, and the jury was not allowed to know about that statute; the judge refused to permit the defense lawyers to inform the jury about it. (Testimony defending the reliability of Christian Science healing was also excluded.) The jurors were “instructed” that they had to find the defendants guilty, and they did so, tearfully and reluctantly; they were furious afterward, when they learned the truth. When the law itself can be excluded as inadmissible evidence, clearly the judge’s power to exclude evidence has gone too far.

To my mind, the
most attractive solution to the problem of admissibility is one suggested
by Eric Klien and Mike Oliver in the Constitution of Oceania:
“The jury may not at any time be removed from the courtroom during a trial to prevent them from hearing evidence. … The judge has no power to strike any evidence from the record. It is expected that juries are reasoning Adults who are as competent as the judge to decide who is lying and who is not. Evidence uncovered by an illegal search WILL be allowed in Court. Unlike corrupt countries that allow both the criminal and the arresting officer to go free when an illegal search is made, Oceania will prosecute both.”
This is very much
in the spirit of the Athenian jury system.

The Athenians would have been horrified at the extent to which our government today has encroached upon the jury’s authority with voir-dire, rules of evidence, and the like. The 19th-century libertarian theorist Lysander Spooner, a hero of today’s jury-rights movement, in his famous Essay on the Trial by Jury defended the idea of jury sovereignty in terms quite similar to the thinking of the Athenian democrats:
“To secure this right of the people to judge of their own liberties against the government, the jurors are taken … from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government.

This is done to prevent the government’s constituting a jury of its own partisans and friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.

It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of ‘the country’ at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government … will be represented there, as well as its friends …. A trial by such a tribunal is, therefore, in effect, ‘a trial by the country.’ …

But all this ‘trial by the country’ would be no trial at all ‘by the country,’ but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures.”

(Spooner, pp. 122-123.)

(And of course
Spooner’s argument for selecting jurors by lot applies mutatis
mutandis to the selection of legislators.)

The Athenian court system did not operate according to precedent. No jury was bound by the decisions of previous juries in previous cases. This is a striking difference between Athenian law and more familiar systems like Roman law or the English common law. Whether this was a good or bad thing is hard to say. On the down side, the refusal to rely on precedents deprived the Athenian legal process of the valuable attribute of predictability. Reduction of uncertainty is ordinarily a virtue in any legal system. Moreover, case law, evolving in response to the needs of day-to-day life, can serve as a useful check against an arrogant and unrestrained legislature; and case law can also serve as a storehouse for the accumulated wisdom of many generations of judges. On the positive side, the jury’s freedom to decide cases according to their common sense rather than adhere to judicial precedent ensured that people would be judged according to the well-understood and widely-accepted customs and moral sense of the average citizen, rather than according to the arcane criteria of a jurisprudential elite. (My impression is that case law is preferable so long as it retains a strong competitive element, and becomes a maze of impenetrable jargon only when that element is removed.)

The Areopagos

The Jury Courts formed the core of Athens’ judicial branch; but another court, the Areopagos, was also highly respected. The Areopagos, so called because it met on the Hill of Ares, was a survival from an earlier period; before the establishment of democracy, the Areopagos had been the old aristocratic senate, the most powerful body in Athens. Democratic reforms transferred most of the Areopagos’ powers to the Council or the Assembly, transforming the Areopagos into a court with fairly limited jurisdiction (whose extent appears to have fluctuated over the years).

These reforms also changed the Areopagos’ composition from a body of hereditary nobles to a board consisting of former Magistrates. The Areopagites held office for life, an extremely unusual provision by Athenian standards — but since the Areopagites were drawn from the Magistrates, who in turn were chosen by lot, the Areopagos, like the Jury Courts, could be expected to represent a fair cross-section of the Athenian population, while the fact that all Areopagites had served as Magistrates guaranteed that they would have more political experience than the average jury. The Areopagos seems to have enjoyed a kind of mystique, and its decisions were highly respected.

During the Roman period, after Athens had ceased to be a democracy, the Areopagos recovered many of its old aristocratic powers, and became once more the supreme power in Athens. That is why, in the first century AD, the apostle Paul was brought before the Areopagos (“Mars’ hill”), rather than the Council or Assembly, to explain his doctrine. (Acts 17: 15-23.)

The Legislative Courts

At the beginning of the fourth century, after a decade of unprecedented constitutional crisis, the Athenians decided to add a stabilizing factor: the Legislative Courts. Each year, the Assembly conducted a review of all the existing laws (in the narrow sense, excluding decrees), voting each one up or down. If a law was approved, it was retained without change. But if it was disapproved, the Assembly could not simply abolish it as they could with decrees; the Athenians did not want to run the risk that the Assembly might be pressured or intimidated into abolishing Athens’ democratic institutions, as they had in 411. If the Assembly wanted a law revised or repealed, they had to convene a Legislative Court.

Cases before the Legislative Courts were conducted like regular jury trials, except that it was the law, rather than an individual, that stood accused. Those favoring repeal acted as prosecutors, those opposing repeal argued the defense. Instead of choosing between penalty and counter-penalty, the jurors (called “Legislators,” but drawn by lot from the same pool of volunteers as the ordinary Jury Courts) chose between the existing law and the proposed revision. The Legislative Courts thus acted as a second forum for judicial review.

The Executive Branch

The Magistrates

The remainder of government business was conducted by a host of commissioners, functionaries, and minor officials, known collectively as the Magistrates. These too were generally chosen by lot, and restricted to a one-year term; an important exception was the Board of Generals, who were elected by popular vote (this was one office the Athenians could not afford to fill with inexperienced people chosen at random) and could be re-elected indefinitely (term limits for a successful General in the middle of a war didn’t make sense).

Contemporary critics regarded the practice of appointing Magistrates by lot as sheer lunacy. Most of these critics were oligarchs who shuddered at the thought of offices being filled from the ranks of the rabble, but at least one critic, the anonymous author of the fourth-century treatise Dissoi Logoi, attacked sortition on democratic grounds: Since oligarchs are a minority of the population, elections will keep them out of office, whereas sortition could easily place such people in positions of power, thus imperilling the city’s democratic institutions. Most Athenians, however, were inclined to view elections as more likely than sortition to bring oligarchs to power, given the influence that wealth can have on elections.

In any case, there were safeguards against the danger that the lot would bring too many knaves and fools to power:
“It was not ‘the rulers of the city’ who were chosen by lot, but officials charged with limited routine duties, for which little more than ‘a sense of decency and fair play’ was required. Furthermore, it must be remembered that a magistrate had to pass a preliminary examination, which was, it is true, usually formal, but gave his enemies an opportunity for raking up his past; was liable to be deposed by a vote of the assembly taken ten times a year; and after his year was subject to a scrutiny in which his accounts were audited and any citizen could charge him with inefficiency or abuse of authority.”

(Jones (1957), p. 48.)

Law Enforcement

Law enforcement was not one of the services offered by the Athenian state. Athens had no actual police force; the nearest equivalent was a few hundred guards — slaves owned by the state — but their main task was keeping order at public meetings. The notion of an elite enforcement corps, with broader authority than the average citizen, would have been anathema to the Athenians. “No classical state ever established a sufficient governmental machinery by which to secure the appearance of a defendant in court or the execution of a judgment in private suits. Reliance on self-help was therefore compulsory ….” (Finley (1994), p. 107.) Victims had to rely on friends and relatives to enforce judicial decisions; if these lacked sufficient force, it might be necessary to appeal to a powerful patron, though the role of patronage in law enforcement never reached the level of formalization that we find in, for example, mediæval Iceland. (Still, in light of this recourse to private law enforcement, it’s debatable whether Athens really counts as a state.)

Ostracism

The Athenians did not take their democracy for granted. They were all too conscious of the exceptional and fragile nature of their political system, and they built in as many safeguards as they could devise against the growth of an oligarchic elite. This fear was not idle; they saw that those few political leaders who were not appointed by lot — the Generals and the Rhetors — came overwhelmingly from the wealthier classes. Clearly, social prominence and economic patronage, combined with the eloquence and persuasiveness available to those who could afford to pay teachers of rhetoric, could provide a path to political power for the rich. The Athenians knew the early history of their city, when tyrants won power by posing as champions of the people, and they were determined not to let it happen again.

One of the safeguards they adopted was formal ostracism. This allowed the Athenian people as a whole to vote for the expulsion from the city of any citizen they chose, for a period of ten years. Unlike exile, ostracism was not a penalty for a crime; also unlike exile, it was applied only to the prominent and powerful — those that the people feared might be positioning themselves for a coup. The procedure was that someone would propose to hold an ostracism, the Assembly would vote on it, and if the proposal won then an ostracism would be scheduled. On the day of the ostracism, every adult male citizen could turn in a ticket (literally a potsherd, ostrakon, whence the name) inscribed with the name of the person they thought Athens could best do without, and the person whose name got the most votes had to leave the city for ten years.

A famous anecdote about the Athenian statesman Aristeides, popularly known as “Aristeides the Just,” is that one day when Athens was holding an ostracism, an illiterate farmer came up to him, not knowing who he was, and asked him for help in inscribing his ostracism ticket. Aristeides agreed to help, and asked whose name the farmer wanted to inscribe. “Aristeides!” the farmer said. When asked what he had against Aristeides, the farmer replied that he was sick of hearing Aristeides called “Aristeides the Just” all the time. So Aristeides duly inscribed his own name on the ticket, and in fact was ostracized. (It would be particularly poignant if his ostracism had carried by one vote, but it seems not. The whole story is usually assumed to be apocryphal; however, Hansen points out: “oddly enough, there does survive one ostrakon on which the name Aristeides was started in a shaky hand and crossed out and begun again in a firm, legible one.” (Hansen (1991), p. 312.))

This anecdote is often appealed to (e.g., by Isabel Paterson) as evidence that people were ostracized for frivolous reasons; but I think this fails to see the farmer’s point. The farmer was not simply being cantankerous, envious, or malicious; when a prominent politician gets a name like “the Just” or “the Great” popularly attached to his name, thus being treated with the kind of reverence and deference more appropriate to a king than to a fellow-citizen, from the Athenian point of view this is a danger sign that the individual is getting too powerful and poses a danger to his nation’s freedom. The formal ostracism was a kind of pre-emptive strike.

Ostracism was fairly common in the fifth century, but seems to have been abandoned in the fourth, when prosecution for unconstitutional proposals became the more common way of curbing the power of politicians. This is arguably preferable, in fact, since it requires charging the accused person with a definite infraction and proving him guilty, and so seems less arbitrary and more in accordance with the traditional Athenian respect for the rule of law.

Athenian Democracy and Its Critics

Ancient Critics

Not all Athenians had a high opinion of their constitution. Thucydides, for example, blamed the loss of the Athenian Empire on incompetent leadership, entering the Peloponnesian War rashly and then waging it in an erratic and irresponsible fashion. This in turn he thought was the inevitable result of allowing the ignorant masses to outvote the educated and respectable citizens. For a long time modern historians accepted this judgment, blaming Athenian democracy both for starting the war and for losing it. But recent historical research has shown that these charges are largely unfounded; I won’t take the space to go into details here, but check the bibliography entries for Forrest and Kagan. Recall, too, that if it was under democracy that the Athenians lost their empire, it was also under democracy that they won it — not once but twice.

Another common charge in antiquity — found in Plato’s Republic, for example — was that democracy leads to tyranny. All Greeks knew of examples where ambitious men had won dictatorial powers by posing as champions of the poor. The opponents of democracy reasoned that this should be all the more easy in democratic states, because the poor — the natural supporters of such a champion — have more clout and so can bring their champion to power more easily.

But a study of history does not seem to bear this theory out. It is certainly true that in non-democratic societies, unscrupulous politicians have often exploited democratic aspirations on the part of the poor in order to gain power for themselves; think of Julius Cæsar, or in more recent times Juan Perón. But this is far less common in a genuine democracy, precisely because the poor have access to established constitutional means for redressing their grievances and so have less need of such a champion. And the two brief coups that occurred in the history of the Athenian democracy were both carried off by avowed oligarchs who made no pretense of democratic sympathies.

One charge brought by some of the more extreme critics of Athenian democracy, like Plato in the Republic, or the anonymous author called the “Old Oligarch,” was that under democracy there was too much freedom. People made their own choices and lived as they pleased, without being directed and supervised by the state; and they showed insufficient deference to their social superiors. Of course, the fact that Athenian democracy attracted this sort of comment is precisely why libertarians should take it seriously as a model!

Critics of democracy regarded politics as the rightful domain of an educated elite, a domain in which the lower orders had no business meddling. Indeed, “minding one’s own business” became an oligarchic code phrase for depriving the lower class of political rights, prompting Perikles to snap in response:
“Here [in Athens] each individual is interested not only in his own affairs but in the affairs of the state as well: even those who are mostly occupied with their own business are extremely well-informed on general politics — this is a peculiarity of ours: we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all.”

(Thucydides, II. 40.)

This retort has
sometimes been misread as an endorsement of collectivism and compulsory
political participation; in fact it is simply a rejection of the notion
that slavish deference to one’s class superiors is an appropriate
attitude for a free citizen.

Plato’s main criticism of the Athenian system was that, in politics as in every other field of endeavor, decisions should be made by experts rather than by voting. We do not decide how to treat a disease, or build a house, or solve a mathematical problem, by putting the matter to a vote or picking people at random; instead we appeal to those who have knowledge, and accept their decision, ignoring everybody else’s. Why, he asked, should we not behave likewise in politics, giving supreme power to a handful of experts while denying any voice in the matter to the ignorant masses?

The obvious response, of course, is to ask, first, how these experts are to be recognized and identified, and second, even if their expertise is genuine, how they are to be trusted to rule in the common interest rather than exclusively in their own. Athenians had a skeptical attitude toward professional politicians:
“They went on the basis that, given the chance, every one of them would have his hand in the till and make a profit out of political activity, and they took every possible means to limit the chances. … Athenian leaders were called to account more than any other such group in history: to be a rhetor or a general was to choose a perilous career that could easily lead to condemnation and execution — if you failed to flee into exile in time.”

(Hansen (1991), p. 310.)

Plato has Sokrates
remark in his defense speech that if he had been a politician rather
than a philosopher he would have been executed a lot earlier, since
no Athenian politician who opposes the will of the people can expect
to escape with his life. (Plato means this as a complaint against
Athens; from our perspective it may look more like praise.)

Plato would have agreed that politicians are generally untrustworthy, but he would have blamed this on the fact that they had been improperly brought up. This was another quarrel that Plato and other critics had with democracy: the absence of public education. The teaching of children was left up to their parents to arrange; Plato was convinced that if this power were taken away from the arbitrary and ill-informed decisions of parents and transferred instead to the state, so that future leaders could be subjected from birth to a rigorous program of moral training and indoctrination, the problem of untrustworthy politicians would be solved.

Plato seems to have seen few limits to the capacity of human nature to be shaped and molded. Not all of his students agreed. Aristotle, for example, though also an advocate of public education, favored a narrower scope for it than Plato had, and made more modest claims on its behalf. To justify his skepticism Aristotle pointed to the example of Sparta, on whose education system Plato’s was largely modeled; the Spartans, he noted, behaved with inflexible virtue and iron discipline when they were being observed by their peers, but once they traveled outside of Sparta they were notorious for being the most corrupt crooks in Greece.

Most critics of democracy were less extreme than Plato. They did not generally advocate giving absolute power to an elite and disenfranchising the common people utterly. Instead, they advocated a system which has come to be known as a constitutional republic. Even Plato eventually came around, in his later years, to this model.

The function of a constitutional republic is to balance the interests of the wealthy minority against the interests of the less affluent majority, so that neither side can run roughshod over the other’s rights. Xenophon, for example, argued that since it is agreed that it is wrong for the rich to oppress the poor, it should also be agreed that it is wrong for the poor to oppress the rich. Aristotle made the same point from the opposite angle: since it is agreed that it is wrong for the poor to oppress the rich, it should also be agreed that it is wrong for the rich to oppress the poor. (Perhaps they were addressing different audiences?) In addition to being more just, such a system was also likely to be more stable, since the interests of the two classes most able to overthrow the constitution (the rich, powerful because of their wealth, and the poor, powerful because of their numbers) would both be addressed.

How would such a constitutional republic be structured? There were different proposals, but many of the moderate critics of democracy converged on a model called the Mixed Constitution. (Some Athenians called it the “ancestral constitution,” on the basis of a certain similarity to the precepts of the early Athenian lawgiver Solon.) Thucydides and Aristotle favored this system, for example, as did such later Aristoteleans as the historian Polybius, who looked to the Roman Republic as a successful example; and the Mixed Constitution has continued to cast its spell well into the modern era, influencing such figures as Machiavelli, Montesquieu, and Madison.

The idea behind the Mixed Constitution was to combine elements of democracy with elements of oligarchy, the theory being that this was the best way to achieve the goal of balancing the interests of the many against the interests of the few. Different versions of the Mixed Constitution were proposed, but the following four points are fairly representative:

1. Abolish sortition in favor of election by vote.

As we’ve seen, election was regarded as a move away from genuine democracy because it favored the wealthy and prominent over the average citizen. The moderates condemned selection by lot as foolish, since it gave more qualified candidates no advantage over less qualified ones, and they hoped that an electoral system would bring a “better class of people” into office.

2. Abolish pay for government officials and jurors.

Advocates of the Mixed Constitution saw government salaries as favoring the poor over the rich and the middle class, since poor people would be disproportionately attracted to them — especially the very poorest, the marginal, unemployable, disreputable “rabble.”

3. Deprive the Menial class of all political rights.

This is in the same spirit as point 2. The theory was that political sense and political virtue were the product of education and experience, and so required leisure. Those who engaged in manual labor did not have the time to develop the political skills necessary for an informed vote. In addition, servile laborers — i.e., those who worked for hire rather than being self-employed — were regarded as being dependent on their employers and thus too analogous to slaves to qualify as complete citizens. Finally, it was thought that the poverty of the Menials made them potential traitors to the regime, since it would be easier to bribe them; the city would be more stable if political rights were reserved to those who had a financial stake, a kind of investment, in the preservation of the constitution.

4. Give both the Horsemen and the Yokemen the right to vote, but ensure that only Horsemen hold office.

There were two possible ways of doing this. The most obvious would be to simply exclude Yokemen from office by legal fiat. A subtler way would be to rely on step 1, using the social prominence and economic patronage of the Horsemen to guarantee that offices would nearly always go to them anyway, even if Yokemen remained technically eligible as well.

The reason for reserving governmental offices for the Horsemen class was the usual one that political wisdom requires education, which requires leisure, which requires wealth. Why, then, allow Yokemen the vote? Why not let the Horsemen monopolize all political rights? Because the Mixed Constitution is intended to be a combination of oligarchy and democracy, not a pure triumph for oligarchy. To exclude the respectable middle class — the Yokemen — from all political rights would be unjust, as well as threatening the stability of the regime by giving the armed infantry (drawn predominantly from the Yokemen) an incentive to rebel.

In addition, Aristotle advanced a subtler reason for not disenfranchising the Yokemen. He agreed that the more prosperous citizens were likely to be wiser; but, unlike Plato, he thought that a large number of individually unimpressive people might, by pooling their collective experience, turn out to be wiser than a single wise individual. (A modern confirmation of this is that, e.g., if people who have no idea how tall Mount Everest is are nevertheless asked to guess, any individual guess is likely to be wildly wrong, but as the sample increases, the average of all the guesses converges with astonishing accuracy on the correct figure.)

How well founded were these four proposals? Not very. If sortition brought such useless people to power, how was Athens able to dominate Greece? Complaints about the inefficiency of the lot seem to be rather exaggerated. And many of these complaints missed the point anyway:
“… how absurd it is, says Sokrates, to pick the magistrates by lot when you would not pick a helmsman, or whatever, in that way. [Sokrates' fallacy] resides in the unstated premise that the magistrates have the same power to steer the ship of state as a helmsman has to steer his ship. But the Athenians chose their magistrates by lot precisely to ensure that they should not be steersmen of the state: one of the purposes of the lot was to diminish the powers of the magistrates. The lot was based on the idea not that all men were equally expert, but that all men were expert enough at what they were chosen for, and that by the use of the lot magistracies would cease to be attractive as weapons in the struggle for power.”

(Hansen (1991), p. 236.)

Nor is there any
evidence to suppose that the poor were over-represented in political
offices or on juries. Jurors in particular were drawn largely from
older, retired citizens, who had the necessary leisure to serve all
day as jurors, and many were drawn to the job for its psychic rewards
— put bluntly, an opportunity to wield power — rather than
for the modest wages. As for the proposal to exclude the poorer classes
from some or all political rights, the notion that wisdom and virtue
are correlated with wealth and education is a dubious one that history
does not seem to support; and Aristotle’s suggestion that manual laborers
are on a par with mental defectives is such an obvious product of
class bias that it is difficult to take seriously. Moreover, the idea
that the poor are the most likely to turn traitor is particularly
ludicrous, given that Athens’ most famous traitors — men like
Alcibiades and Hippias — came from the aristocratic class. Indeed,
one could argue that the poor were the class least likely to
be tempted to betray their country, as they had the most to lose if
the democratic constitution were overturned.

These theorists were right to favor the notion of a constitutional republic, where neither the rich minority nor the poor majority could gain the upper hand and play the role of tyrant. Their mistake lay in thinking that the Mixed Constitution, a combination of democracy and oligarchy, was the best way to implement the republican ideal. On the contrary, the Athenian democracy was a constitutional republic already. Thucydides has one spokesman for democracy, a Sicilian Rhetor with the suspiciously apposite democratic name of Athenagoras, point out that demokratia — rule by the people — means empowering the people as a whole, not just the majority:
“There are people who will say that democracy is neither an intelligent nor a fair system, and that those who have the money are also the best rulers. But I say, first, that what is meant by the demos, or people, is the whole State, whereas an oligarchy is only a section of the State; and I say next that though the rich are the best people for looking after money, the best counselors are the intelligent, and that it is the many who are best at listening to the different arguments and judging between them. And all alike, whether taken all together or as separate classes, have equal rights in a democracy.”

(Thucydides, VI. 39.)

The Athenian playwright
Euripides likewise describes the democratic ideal not as domination
by the majority but as equality before the law:
“Your start was wrong, seeking a master here.
This city is free, and ruled by no one man.
The people reign, in annual succession.
They do not yield the power to the rich;
The poor man has an equal share in it. …
People of small resources and the rich
Both have the same recourse to justice. Now
A man of means, if badly spoken of,
Will have no better standing than the weak;
And if the little man is right, he wins
Against the great. This is the call of freedom:
‘What man has good advice to give the city,
And wishes to make it known?’ He who responds
Gains glory; the reluctant hold their peace.
For the city, what can be more fair than that? …
But when one man is king, he finds this hateful,
And if he thinks that any of the nobles
Are wise, he fears for his despotic power
And kills them. How can a city become strong
If someone takes away, cuts off new ventures
Like ears of corn in a spring field? What use
To build a fortune, if your work promotes
The despot’s welfare, not your family’s?”

(Euripides, The Suppliant Women 404—451.)

The advocates
of the Mixed Constitution, on the other hand, saw democracy as rule
by the poor majority. Since they knew that oligarchy was rule by the
rich minority, it was not unnatural for them to conclude that the
best way to balance the interests of both factions was to design the
constitution so as to embody a mixture of democratic and oligarchic
elements. Their error lay in seeing a symmetry between democracy and
oligarchy that did not exist.

Why was this an error? Because severing the official link between wealth and political power did not deprive the wealthy of all their power, but only of some of it. The riches of the upper class still provided them with a great deal of influence, even under democracy. As I have argued elsewhere:
“The city-states of the ancient world … had surprisingly weak and decentralized governments, with nothing we would recognize as a police force. … Yet these city-states were class societies, with a powerful and effective ruling class. Where did the power of the ruling class come from, if not from a powerful state?

The historian M. I. Finley has studied this question, and come to the conclusion that the ruling classes maintained their power through the device of patronage …. In effect, the wealthy classes kept control by buying off the poor. Each wealthy family had a large following of commoners who served their patrons’ interests (e.g., supporting aristocratic policies in the public assembly) in exchange for the family’s largess.”

(“Can We Escape the Ruling Class?,” in Formulations, Vol. II, No. 1 (Autumn 1994); cf. Finley (1994).)

The Athenian democrats
were well aware of the dangers from patronage. They could have attempted
to meet this problem by simply abolishing inequalities of wealth and
redistributing the oligarchs’ riches to the masses. Indeed, the upper
class was fond of accusing the democrats of planning to do this. But
in fact the Athenian democrats were far too committed to the ideals
of individual rights and the rule of law to contemplate such a measure.
Rather than eliminating economic inequality itself, they sought to
combat its effects. That is why they relied on sortition rather
than election — so that the rich could not use patronage to buy
their way into office. Likewise, all the Athenian experiments (mild
by today’s standards) with welfare statism were attempts to fight
patronage by providing the poor with a source of revenue that would
not make them dependent on their class opponents.

Athens’ democratic institutions weakened the effects of patronage, and so largely prevented the rich from oppressing the poor. But they did not do away with the effects of patronage entirely, and so the poor were not thereby empowered to oppress the rich. The result was a balance between the interests of the two classes, just as the advocates of the Mixed Constitution recommended. Those advocates did not recognize Athens as an instance of their ideal of a constitutional republic, because they did not sufficiently appreciate the power of patronage. Their favored remedy, the Mixed Constitution, tilts the scales of power decisively in favor of the rich once the power of patronage is taken into account — the Roman Republic being an obvious case in point.2 Because they underestimated the political clout that wealth brings, their recommended system of checks and balances overcompensates for the power of the poor and undercompensates for the power of the rich.

Modern Critics

Athens has its modern critics also. One common criticism of the Athenian system of direct democracy is that such a high level of participation requires a great deal of leisure, and that the citizens enjoyed this leisure only because they could rely on the unpaid labor of women and slaves. Thus, it is claimed, the Athenian political system inherently requires involuntary servitude as its economic base. By contrast, in a representative system, the level of participation demanded is lower, and so citizens do not have to spend all their time discussing politics; they can work for a living, and so do not have to depend on exploiting the labor of a large class without political rights.

I think this objection is mistaken. It is certainly true that in Athens, as in other Greek states, women and slaves were excluded from the benefits of democratic rights. But this was not essential to the system. The amount of leisure that the Athenian system required has been grossly exaggerated. Most Athenians worked for a living. The heaviest labor was performed not only by slaves but also by Menials, who were generally too poor to own slaves; to the Menials, the notion of Athenians as a bunch of leisured gentlemen relying on the labor of slaves would have seemed a bad joke. The Yokemen did ordinarily have slaves, but they themselves worked too, as farmers or tradesmen, often right alongside their slaves. The only class of which the “leisure” stereotype is at all true is the Horsemen, and they were a minority of the Athenian population. There was no significant conflict between political participation and earning a living. Serving as a Councillor or Magistrate was a temporary position; the Assembly met infrequently, and most people attended only occasionally anyway; and the judiciary was manned primarily by retirees. So the Athenian system would not have been noticeably hampered if slavery and sexual inequality had been banished.

One prominent modern critic (modern in the sense of post-Renaissance) of Athenian democracy was James Madison, father of the U. S. Constitution. In the Federalist Papers, he wrote:
“… a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole … and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. … ”

(Federalist §10.)

But this image
of Athenian democracy is not a realistic one. Property rights and
personal security were as secure in Athens as anywhere else, if not
more so; and the constitution was a relatively stable one by Greek
standards. The Athenian democracy is generally regarded as beginning
in 508, with the reforms of Kleisthenes, and ending in 338, when Athens
like the rest of Greece fell under the yoke of the Macedonian Empire.
During that period — over a century and a half — all the
political convulsions that Athenian critics like to point to were
crammed into a single decade at the end of the fifth century: the
Crisis Years of 413-403. These years saw the destruction of most of
Athens’ fighting force during the Sicilian expedition; an oligarchic
coup and democratic counter-coup; the mass trial of the Arginusai
Generals; Athens’ defeat and occupation by Sparta; the installation
of the bloodthirsty dictatorship of the Thirty; and a violent civil
war which restored the democracy. It was in the wake of this crisis
period that Sokrates was sentenced to death by a harrowed and paranoid
jury in 399. Athens has been indicted on the basis of a quite short
and atypical period of its history (cf. Finley (1969), p. 72.). Nor
did the Athenian democracy die in political convulsion; it rebuilt
itself from the ashes and flourished for another three quarters of
a century, before finally succumbing not to domestic turmoil but to
an outside threat that swallowed up all of Greece.

In any case, it is risky to judge Athens on the basis of notorious incidents like the Arginusai mass trial or the execution of Sokrates. As one scholar points out:
“Excesses and illegalities are all too common in the history of peoples and governments roused to anger by sorrow, tension, and passion. In despotisms they rouse little attention and are not long remembered, for arbitrary and excessive behavior is their normal pattern of life. In constitutional, moderate, lawful states, however, they are seized upon as outrages and never forgotten, precisely because they stand out so sharply as contrary to what is usual.”

(Kagan (1987), p. 374.)

So it was in Athens.

Madison perpetuates the stereotype of Athens as an unruly mob, gripped by irrational whims:
“In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

(Federalist §55.)

O Fortunate Athens,
that by amazing luck or the favor of the gods was able to gain ascendancy
over half the Greek world, to defy first the Persian and then the
Spartan war machine, and finally, after being conquered, to rise again
to a level of power and prestige almost equal to what it had lost
— all under the guidance of passion rather than reason!

Madison’s suggested cure for the alleged evils of democracy draws heavily on the tradition of the Mixed Constitution:
“A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking. … the delegation of the government … to a small number of citizens elected by the rest [serves] to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for that purpose.”

(Federalist §10.)

Of course, Madison
realizes that this is not the only possible outcome:
“On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people.”

(Federalist §10.)

But Madison argues
that this problem can be avoided if the republic is sufficiently large.
(In this respect he is departing from the traditional republican position,
which held that a republican system could avoid collapsing into oligarchy
only if the republic were fairly small in territory and population.)
“…as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practise with success the vicious arts by which elections are too often carried …. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. … A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it ….”

(Federalist §10.)

This idea of Madison’s
was a brilliant one. Unfortunately, experience has shown it to be
mistaken. As I wrote in the premiere issue of Formulations:
“Such was the intent of the Framers of the U.S. Constitution …. the broad base of representation was expected to ensure that no special interest could succeed in manipulating the government. … As we have since learned all too well, the experiment eventually proved to be a failure. Madison and his colleagues could not foresee the logrolling process whereby … special interests (‘factions’) that were intended to hold one another in perpetual check instead made concessions to one another’s ambitions in exchange for like concessions to their own.”

(“Virtual Cantons: A New Path to Freedom?,” Formulations, Vol. I, No. 1 (Autumn 1993).)

The large size
of the American republic only made things worse, as the widely dispersed
majority were distant from their representatives and unable to concentrate
their voice.

The last modern critic of Athenian democracy that I shall consider is Isabel Paterson, whose 1943 book The God of the Machine (published the same year as Rose Wilder Lane’s The Discovery of Freedom, Ayn Rand’s The Fountainhead, and Albert Jay Nock’s Memoirs of a Superfluous Man) remains one of the classics of 20th century libertarian thought. Paterson is obsessed with the importance of political structure — an obsession I share. To quote my first Formulations article once more:
“What would the constitution of a free nation look like? In trying to answer that question we immediately think in terms of a Bill of Rights, restrictions on governmental power, and so forth. And any constitution worth having would certainly include those things. But if a constitution is to be more than a wish list, it must also specify the political structure necessary to ensure that these freedoms are not eroded or ignored. Consider the old Soviet Constitution, which guaranteed all sorts of fine-sounding freedoms for its citizens — but which in practice proved only a empty promise, since its interpretation and enforcement lay in the hands of an unfettered monolithic centralized state.

Framing a constitution is an exercise in public-choice economics; politicians react to incentives, and so the political incentive structure must be designed in such a way that those in authority cannot profit by the aggrandizement of state power.”

This is a lesson
I first learned from Paterson. It is also central to Madison’s way
of thinking. Where Paterson goes wrong, I think, is that she, like
Madison, fails to recognize the political structure that existed in
democratic Athens.

Paterson condemns Athens for a lack of checks and balances. As she sees it, Athenian democracy represents pure majority will, without any countervailing power to offset it: “dislocated mass,” Paterson calls it. But this is a mistake. I will admit that I would be more comfortable with the Athenian system if proposals in the Assembly and verdicts in the Jury Courts had required a supermajority rather than a bare majority in order to be enacted. But all the same, the power of the majority could hardly be described as unchecked.

For one thing, the Athenian judiciary had the power, as we’ve seen, to strike down unconstitutional legislation. For another, the wealth of the rich minority enabled them to exert a serious influence to balance against the will of the less affluent majority. Paterson fails to recognize patronage as playing a role in the constitutional structure, as she often fails to see structure that is informal and not codified into law. (This is why she wrongly rejects anarchism as incompatible with political structure; but that’s another story.)

Pursuing this no-structure critique, she also faults Athens for not attaching representation to regional bases, something she sees as crucial for stability. Here she is simply misinformed; members of the Athenian Council represented not a mass aggregate of citizens, but regional districts called demes.

Paterson also complains that the Athenians had no notion of individual rights — that nothing, in principle, was beyond the scope of the democratic government’s authority. She grants that Athenian law left a wide area of freedom to the individual, but she insists that this was a matter of custom, not something regarded as a right. This charge is difficult to assess; the Athenians did not have a written constitution, and so had nothing like a Bill of Rights. But — Paterson to the contrary notwithstanding — they did generally think that there was a moral standard beyond custom, to which custom had to answer in order to be legitimate. The Athenian playwright Sophokles expresses the common view:
” — You knew the order not to do this thing?
— I knew, of course I knew. The word was plain.
— And still you dared to overstep these laws?
— For me it was not Zeus who made that order.
Nor did that Justice who lives with the gods below
mark out such laws to hold among mankind.
Nor did I think your orders were so strong
that you, a mortal man, could over-run
the gods’ unwritten and unfailing laws.
Not now, not yesterday’s, they always live,
and no one knows their origin in time.”

(Sophokles, Antigone 447-456.)

A similar point
is made by Perikles:
“… in public affairs we keep to the law. This is because it commands our deep respect. We give our obedience to those whom we put in positions of authority, and we obey the laws themselves, especially those which are for the protection of the oppressed, and those unwritten laws which it is an acknowledged shame to break.”

(Thucydides, II. 37.)

Moreover, as Hansen
(1989) has shown, the Athenian democrats operated with a firm distinction
between the public sphere, which was the legitimate province of state
action, and the private sphere, which was not the state’s business.
It was the Athenian philosophers, largely oligarchic in their
sympathies, or at least in favor of a Mixed Constitution — and
deeply alienated from their own society, for a mix of good and bad
reasons — who denied the public/private distinction; but the
Athenian democrats had a different outlook.

Like other anti-Athenian theorists we have looked at, Paterson has an enormous admiration for the Roman Republic. (Indeed, despite my great admiration for her book as a whole, I must say I find her pro-Roman bias so pronounced as to be extremely tiresome!) She sees the contrast between Athens and Rome as one of arbitrary rule versus respect for law. She is uncomfortably aware, however, that Roman law was generally more brutal and oppressive than its Athenian counterpart; but she dismisses this as irrelevant:
“To sentimentalize Roman law and gloss over its harsh and faulty aspects is to miss the point. Its solid virtue was its mere existence, since at worst it proved preferable to the unpredictable will of either king or people. In their ordinary conduct the Athenians were probably more humane, or easygoing, than the Romans; but the quality of Roman law was that it was dependable.”

(Paterson (1993), Ch. 3.)

But this ideal
of dependability and predictability was not a Roman monopoly; Kleon,
one of the most prominent leaders of the Athenian democrats, made
precisely the same point:
“And this is the very worst thing — to pass measures and then not abide by them. We should realize that a city is better off with bad laws, so long as they remain fixed, than with good laws that are being constantly altered ….”

(Thucydides, III. 37.)

Stability of the
law was an Athenian ideal no less than a Roman one.

It is true that Rome probably did have greater reverence for the strict and exact letter of the law than Athens did. But this legalistic attitude is not necessarily to Rome’s credit. For example: at one point Rome had a law saying that it was illegal to execute a virgin. Presumably the intent of the law was to protect virgins; but the result was that, in order to abide by the letter of the law while evading its spirit, executioners were legally authorized to rape virgins before killing them. It is very difficult to imagine the Athenians standing for this sort of thing.

Paterson does think Athens was lacking in the rule of law:
“Though the anecdote may have been invented as a joke which related that an Athenian voted for the banishment of Aristides because he was tired of hearing Aristides called The Just, the thing was not impossible by the democratic system. In Roman law a man must be charged with a specified act having known penalties, and convicted on something more positive than opinion, to incur sentence. He could not be guilty for no cause.”

(Paterson (1993), Ch. 3.)

But this contrast
is unfounded. The Athenians were as committed to the rule of law as
the Romans were. The ostracism example is a rather bad one, because
ostracism was the only case in which an Athenian citizen could
be exiled for no crime, and it was used very infrequently. (And of
course, as we’ve seen, Paterson misses the point of the Aristeides
anecdote.) In the pages of Thucydides one finds that it is the Athenian
democrats above all else who are the most likely to praise the idea
of respect for law. And it is odd that Paterson so roundly condemns
the Athenian practice of ostracism, when she praises the Romans’ habit,
during the Imperial period, of assassinating their Emperors (about
a third of all Roman Emperors died by assassination) as a useful constitutional
adaptation, akin to a letting a fuse blow to protect a circuit in
event of a short. Surely the Greek ostrakon, whatever its faults,
was a more civilized response to the threat posed by powerful individuals
than the Roman dagger.

We should also not be too quick to agree with Paterson that the content of the law is relatively unimportant so long as the law is stable and its enforcement predictable. It is useful to remind ourselves of what some of the laws were under Paterson’s beloved Roman Republic. The common people were forbidden to assemble in large numbers except on official state business; magistrates could impose penalties on any citizen, without due process or the right of appeal; military discipline was arbitrary and brutal; and male heads of households were authorized to put their wives and grown children to death if they so pleased. Roman women were mere adjuncts of men, and were not even allowed to have names.3 On just about any comparison between Athens and Rome, Athens comes out rather well.

What Can We Learn From Athens?

Today we call the United States a democracy. But the Athenians would have called it an oligarchy — or at best a Mixed Constitution. They would have seen our reliance on an electoral system as reinforcing the power of a wealthy, privileged elite whose manipulation of the media and restrictions on ballot access ensure continued success at the polls. The notion that America is run by majority rule is one the Athenians would have found ludicrous; they would have seen that America is run by a tiny minority consisting of public officials and the wealthy interests that support them.

Libertarians are fond of echoing the conservatives’ dictum that America’s founders wanted a republic, not a democracy. What we mean when we say this is that they wanted a system in which neither the majority nor the minority could run roughshod over the other, rather than a system that simply empowers the majority. To that extent, they were right. But for the founding fathers, or many of them, this translated into a preference for a constitution based more on the Roman model than on the Athenian; and this last preference may well have been the fatal error that opened the door to an American Leviathan.

What does the Athenian constitution have to teach us? Which successful features of Athenian law could be usefully borrowed by those seeking to establish a free nation? Here, I think, are some of the lessons that we can learn from that free-nation experiment of two and a half millennia ago:

1. Take the dangers of patronage far more seriously than libertarians are accustomed to doing, and try to devise methods of circumventing its influence.

2. Select a substantial number of government officials by lot in order to break the power of special interests and make the government more representative of the governed. (Just consider: under the Athenian system there would already be libertarians in Congress!)

3. Impose strict term limits on public offices.

4. Make sure the salaries for public office are high enough to ensure that those who are not independently wealthy can afford to serve. (Out of understandable frustration at the cupidity of our rulers, many libertarians have suggested that public officials should be paid little or nothing. It’s an attractive idea, but I think the Athenians were right in regarding it as a dangerous mistake.)

5. At the end of each term, subject officials to a public review of their conduct in office.

6. Make it a prosecutable offense for legislators to pass unconstitutional laws or to win votes through deception.

7. Increase the scope of citizen referendum.

8. Increase the sovereignty of juries by eliminating compulsory empanelment, voir-dire, rules of evidence, and the like. (Though I resist, on egalitarian grounds, the Athenian idea of making juries not legally accountable for their decisions, unless such an exemption is agreed to by both parties to the dispute. Also, a right of appeal would be nice.)

9. Give juries the power of judicial review. (This goes one step beyond the power, already advocated by many libertarians, to nullify the application of a law in a particular case, to the power to actually strike down the law and in effect repeal it for everybody. But an exemption should be made for laws that are, e.g., basic constitutional guarantees of rights.)

10. Make juries extremely large, so that they will be more representative.

11. Treat all cases as civil cases, with the victim rather than the state directing the prosecution.

12. Replace criminal cases with class-action suits.

13. Let juries decide between alternate penalties suggested by prosecutor and defendant.

14. Offer exile (temporary or permanent) as a cost-effective alternative to imprisonment.

15. Foster competition among systems of dispute adjudication.

16. Shift the focus of law enforcement from governmental police to self-help.

It seems appropriate to give the last word to Perikles, the most articulate and inspiring defender of the Athenian constitution:
“Let me say that our system of government does not copy the institutions of our neighbors. … Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. … everyone is equal before the law … what counts is not membership of a particular class, but the actual ability which the man possesses. No one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbour if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people’s feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. …

When our work is over, we are in a position to enjoy all kinds of recreation for our spirits. … in our own homes we find a beauty and a good taste which delight us everyday and which drive away our cares. …

Our city is open to the world, and we have no periodical deportations in order to prevent people observing or finding out secrets which might be of military advantage to the enemy. … The Spartans, from their earliest boyhood, are submitted to the most laborious training in courage; we pass our lives without all these restrictions, and yet are just as ready to face the same dangers as they are. … There are certain advantages, I think, in our way of meeting danger voluntarily, with an easy mind, instead of with a laborious training, with natural rather than state-induced courage. …

We regard wealth as something to be properly used, rather than as something to boast about. As for poverty, no one need be ashamed to admit it: the real shame is in not taking practical measures to escape from it. … We Athenians, in our own persons, take our decisions on policy or submit them to proper discussions ….

Taking everything together then, I declare that our city is an education to Greece, and I declare that in my opinion each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and do this, moreover, with exceptional grace and exceptional versatility. … Mighty indeed are the marks and monuments of our empire which we have left. Future ages will wonder at us, as the present age wonders at us now. …

What I would prefer is that you should fix your eyes every day on the greatness of Athens as she really is, and should fall in love with her. … Make up your minds that happiness depends on being free ….”

(Thucydides, II. 37-43.) D

Notes

1 “The celebrated Pericles, in compliance with the resentment of a prostitute, at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the Samnians. The same man, stimulated by private pique against the Megarensians, another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice in a supposed theft of the statuary of Phidias, or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth.”
(Alexander Hamilton, Federalist §6.)

Here Hamilton relies not even on the moderately biased account of Thucydides, but the centuries-after-the-fact gossip and speculations of the Platonist historian Plutarch. For a more balanced assessment of the origins of the Peloponnesian War, one that shows Perikles’ policy to have been primarily a defensive rather than an aggressive one, see Kagan (1969).

2 The only version of a Mixed Constitution for which much can be said is the old Icelandic constitution, with Chieftains being analogous to Horsemen with the right to hold political office, heads of households being analogous to Yokemen with the right to choose such officers but not to become them, and everybody else being analogous to Menials entirely dependent on the good will of the other two classes. If the Icelandic constitution was more favorable to freedom than the Roman one, it is only because it had less centralization of power. (And if Iceland was a more anarchistic version of Rome, perhaps what lovers of freedom need is a more anarchistic version of Athens.)

3 Roman men had names like our own — a first name peculiar to oneself, and a last name representing one’s family. (Sometimes a nickname, either of the individual or of the family, was added as a third name.) But women had only a last name — their father’s family name — but no personal name. So, for example, if a man was named Marcus Sempronius, his son might be named Gaius Sempronius or Lucius Sempronius or Titus Sempronius, but his daughter would simply be named Sempronia (the feminine version of Sempronius). If he had several daughters, they would all be named Sempronia. Parents told their daughters apart by numbering them; for example, the fourth daughter of Marcus Sempronius would be named Sempronia Four. The position of Athenian women was nothing to brag about, but at least Greek women were regarded as having enough of an independent identity to be worthy of having names. (Nor were their husbands authorized to execute them.)

Ancient Sources

Anonymous. Dissoi Logoi.
Aristophanes. Comedies.
Aristotle. Constitution of the Athenians.
—. Politics.
Demosthenes. Orations.
Euripides. The Suppliant Women. (quotations from the U. of Chicago edition)
Herodotus. Histories.
Livy. History of Rome from its Foundation.
Luke. Acts of the Apostles.
“Old Oligarch.” Constitution of the Athenians.
Plato. Apology of Socrates.
—. Laws.
—. Menexenos.
—. Republic.
—. Statesman.
Plutarch. Parallel Lives.
Polybius. Histories.
Solon. Poems.
Sophokles. Antigone. (quotations from the U. of Chicago edition)
Thucydides. History of the Peloponnesian War. (quotations from Penguin edition)
Xenophon. Constitution of the Lakedaimonians.
—. Hellenica.
—. Recollections of Socrates.
—. Resources of Athens.

Modern Sources

Boardman, John; Griffin, Jasper; and Murray, Oswyn, eds. 1986. The Oxford History of the Classical World. Oxford University Press, Oxford.

Finley, M. I. 1969. Aspects of Antiquity: Discoveries and Controversies. Viking Press, New York.
— . 1994. Politics in the Ancient World. Cambridge University Press, Cambridge.

Forrest, W. G. 1975. The Emergence of Greek Democracy: 800—400 BC. McGraw-Hill, New York.

Hamilton, Alexander; Madison, James; and Jay, John. The Federalist Papers. Penguin, New York.

Hammond, N. G. L., & Scullard, H. H., eds. 1970. The Oxford Classical Dictionary. 2nd ed. Oxford University Press, Oxford.

Hansen, Mogens H. 1989. “Was Athens a Democracy?” Historisk-Filosofiske Meddelelser, Vol. 59.
—. 1991. The Athenian Democracy in the Age of Demosthenes: Structure, Principles and Ideology. Basil Blackwell, Oxford.

Hess, Karl. 1995. Community Technology. Loompanics Unlimited, Port Townsend. [first edition 1979]

Jones, A. H. M. 1957. Athenian Democracy. Oxford University Press, Oxford.

Kagan, Donald. 1969. The Outbreak of the Peloponnesian War. Cornell University Press, Ithaca.
—. 1974. The Archidamian War. Cornell University Press, Ithaca.
—. 1981. The Peace of Nicias and the Sicilian Expedition. Cornell University Press, Ithaca.
—. 1987. The Fall of the Athenian Empire. Cornell University Press, Ithaca.

Lang, Mabel. 1987. The Athenian Citizen. American School of Classical Studies at Athens, Princeton.

MacDowell, Douglas M. 1978. The Law in Classical Athens. Cornell University Press, Ithaca.

Miller, Fred D. 1995. Nature, Justice, and Rights in Aristotle’s Politics. Oxford University Press, Oxford.

Parker, Meg. 1973. Socrates and Athens. Bristol Classical Press, Bristol.

Paterson, Isabel. 1993. The God of the Machine. 2nd ed. Transaction Publishing, New Brunswick. [1st ed. 1943.]

Spooner, Lysander. 1992. The Lysander Spooner Reader. Ed. George H. Smith. Fox and Wilkes, San Francisco.

(to table of contents of archives) (to outline) (to top of page)

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

In that same year, however, three books were published that brought a most unpopular and unwelcome message: namely, that the domestic and foreign policies of countries like Britain and the United States were becoming increasingly fascistic. Just as William Graham Sumner had warned in 1898 that America’s victory in the Spanish-American War, by helping to transform the U.S. into an imperial power on the Spanish model, amounted in ideological terms to the Conquest of the United States by Spain, so these three books warned that while western democracies might be defeating their fascist enemies, they were also becoming their imitators.

The best-known of these works is Friedrich A. Hayek’s The Road to Serfdom. While the book’s anti-statism may not seem particularly radical by libertarian standards, or even in comparison with Hayek’s later work, its message was shocking to the intellectual mainstream of the day. Hayek showed how Nazism (National Socialism) really was, just as it claimed to be, a form of socialism rather than capitalism; and he explained painstakingly how economic planning, regulation, and intervention pave the way to totalitarianism by building up a power structure that will inevitably be seized by the most power-hungry and unscrupulous. For his pains Hayek was denounced as “Hitlerian” (sic).

A closely related work is Omnipotent Government: The Rise of the Total State and Total War (see also the e-text), by Hayek’s teacher Ludwig von Mises. Mises traces the rise of Nazism in Germany and demonstrates the surprising extent to which it was driven by interventionist economic considerations. He explains how protectionist economic policies lead by their own inner logic to a dictatorial domestic policy and a bellicose foreign policy; and even Hitler’s racist ideology is shown to serve the function of disarming critics of Nazi economic doctrines. (Mises arguably goes too far in treating protectionism as virtually the sole driving force behind Nazism, downplaying the independent significance of ideological and cultural factors — just as Leonard Peikoff made the reverse mistake in The Ominous Parallels — but in light of the brilliance of Mises’ analysis this is a minor quibble.)

The third book in this group is As We Go Marching by John T. Flynn, the famous “Old Right” critic of FDR. Flynn traces the rise of fascism in Italy and Nazism in Germany, and points out the disturbing similarities of both movements to the policies of the New Deal. Like Mises — and unlike today’s pro-war libertarians — Flynn understood the essential interconnection between military adventurism abroad and corporatist fascism at home. (Unfortunately, As We Go Marching appears to be out of print; this would be a good year for someone to republish it!)

This year marks the 60th anniversary of these books’ publication. The Road to Serfdom, Omnipotent Government, and As We Go Marching belong on every freedom-lover’s bookshelf. In the present political climate, when the U.S. government is making ever-bolder strides toward fascism while mouthing slogans of freedom, their message is more worth pondering than ever.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

Roderick T. Long Archives

I recently criticised the orthodox Christian interpretation of the
crucifixion in several blog posts: see

a)
God So Loved
the World that He Did What?,
b) Why Jesus
Is Not God, and
c) Sinners
in the Hands of an Angry Jesus?
Dr. Murphy infers
(on the basis of reading just the first one, I think) that I am
therefore “anti-Christian” and indeed “anti-religious.”

I cannot agree with Dr. Murphy’s apparent assumption that the particular
version of theology he accepts enjoys a monopoly on the term “Christian”
(let alone on the term “religious”!). The mainstream interpretations
of the incarnation and atonement did not become orthodoxy until
the fourth and twelfth centuries respectively, and there have always
been dissenters who rejected those doctrines precisely because they
found them not only philosophically but theologically and
scripturally unsound.

Dr. Murphy rightly charges many of Christianity’s critics with being
careless in their attacks; but I fear I must chide him for a similar
error. Dr. Murphy has, I suspect, a certain image of what a critic
of orthodox christology is likely to believe, and so he automatically
views my remarks through the lens of that image. For example, he
takes me to task for asserting that “Jesus never claimed to be the
Son of God,” and even cites some scriptural passages designed to
convince me otherwise. But I never made the assertion he complains
of.

No doubt his stereotypical secularist opponent makes such an assertion,
but what has that got to do with me? I reckon Dr. Murphy saw the
phrase “nowhere to be found in the Bible” and made an associative
leap, without due attention to the context; but the doctrine I was
referring to was the orthodox understanding of the incarnation and
atonement, not the status of Jesus as son of God.

My purpose in my blog posts was to criticise, not Christianity per
se, but a particular doctrine which has acquired great popularity
among Christians but which in my judgment has no place in Christianity.
(I wasn’t raising the question of whether Christianity itself is
right or wrong; though for the record, I think the answer is “some
of each.”) My chief purpose in the present essay is not to
continue that criticism (I can do that on my
own blog) but to rebut Dr. Murphy’s charge of being one of those
“libertarians who ridicule those who believe in Christ.”
I suppose I do think orthodox christology is crazy, but I certainly
don’t think everyone who believes it is crazy (analogy: the theory
that minimum wage laws benefit workers is crazy, but most people
who believe it aren’t crazy); nor, of course, do I think that “those
who believe in Christ” must thereby accept orthodox christology.
Athena forfend!

Feuding Clans and Spitballs

I do want to respond, however, to the two analogies that Dr. Murphy
offers. First he asks us to consider a clan patriarch who cares
“not only for his own children, but also for you and the members
of your family, notwithstanding the unending stream of crimes and
insults committed against him” by your own vicious clan, and so
decides to send his son as an emissary “to live amongst the filth,
disease, hopelessness, and misery that you and your clan called
home”; the patriarch instructs his son to “give wise instruction,”
“point out the error of your ways,” and “lead by example.” Although
the emissary is abused and finally murdered, many of your clan’s
members are impressed enough by the emissary’s example to repent
and change their ways.

I think this is actually a pretty decent analogy to Jesus’ mission
as the Gospels present it (though the absence of anything corresponding
to the resurrection both weakens the analogy – as I read the New
Testament, the meaning of the crucifixion depends crucially
on the resurrection – and makes the patriarch’s treatment of his
son look rather shabby). But it doesn’t rescue the aspects of orthodox
christology that I was criticising. In the feuding-clans case as
Dr. Murphy presents it, the patriarch is not omnipotent and so has
no more efficient way to deal with the problem; the emissary is
not himself the patriarch in disguise; the emissary comes to save
the clan from earthly conflicts they’ve been bringing upon themselves,
not from post-mortem tortures the patriarch himself is threatening
them with, protection-racket-style; and although the emissary does
get executed, the chief point of the emissary’s mission is not his
death but his life and teachings while he lives with the
clan; allowing himself to be executed may be part of leading by
example, but it is not the chief point. Hence Dr. Murphy’s story
makes the orthodox view look reasonable by leaving out all the aspects
I criticised.

A question, by the way, for those who favour the orthodox view:
suppose that Jesus hadn’t been able to find anyone willing to execute
him? I’m not asking you to imagine a world in which everyone is
too virtuous to need Jesus’ redemptive example in the first place;
suppose, rather, that there had been plenty of vicious folks who
were happy to have Jesus insulted, imprisoned, flogged – but they
never actually had the nerve to kill him. (Maybe they were French.)
Would this have ruined Jesus’ whole mission? It seems that on the
orthodox view the answer has to be yes; the crucifixion is the crucial
event on which redemption turns. But on the story Dr. Murphy gives,
the execution of the emissary doesn’t seem to have anything like
the same central importance. (Incidentally, given that on the orthodox
view being crucified was not just part of God’s plan but the centerpiece
of that plan, I’m not sure why Dr. Murphy objects to the phrase
“got himself nailed to a cross.”)

Dr. Murphy’s second example is a philosophy professor who “spends
countless hours preparing supplemental notes” to help students who
mock his efforts and “throw spitballs at him.” When the professor
complains “I’m really trying to help you all get a passing grade
in this class,” the students respond that “after all it was the
professor himself who made the class so tough,” and if he
“really wanted everyone to pass, he should just give them all an
‘A.’”

How should we evaluate this example? It depends, first, on whether
one accepts theological voluntarism or theological intellectualism.
According to theological voluntarism (also known as “theological
subjectivism” or “divine command theory”), the rules of morality
are the product of God’s free choice, and he can alter them as he
pleases; God’s decrees are what make actions right or wrong.
According to theological intellectualism (also called “theological
objectivism”), by contrast, the rules of morality are logical truths
that even God cannot change; in the Thomistic version of theological
intellectualism, this is because to be God is to be objective goodness
personified, and so God cannot alter the requirements of goodness
without ceasing to be God, i.e., without destroying himself.
(Many Christians try to combine the voluntarist and intellectualist
positions by saying “Of course God could command murder,
since he’s all-powerful, but he wouldn’t, because he’s all-good.”
But this compromise position won’t work – since if God did
command murder, then on the voluntarist thesis murder would then
be good, and so God’s goodness can be no bar to his commanding it.)

Suppose we accept theological voluntarism. Then all analogy between
God and the philosophy professor vanishes. Although the professor
made the rules for the course, those rules are not arbitrary; they
reflect the objective requirements for what success in learning
philosophy requires, and the professor lacks the power to change
those objective requirements. But for voluntarists God’s rules do
not and cannot reflect any deeper requirements to which God’s decisions
are answerable. (If the professor could alter at will not just the
rules for his class but the objective requirements for learning
philosophy – making the latter easier, for example – then the
students’ complaints would be perfectly justified.)

Does the example work if we accept theological intellectualism instead?
I don’t think so, for reasons I’ve already discussed on
my blog and so won’t belabour here – except to say that while
students who refuse to study deserve to flunk, I find it hard to
believe that any plausible account of an objective moral law is
going to yield the result that people who refuse to accept Christ
deserve to be tortured in hell for all eternity.

March
3, 2004

Roderick
T. Long [send him mail]
is Associate Professor of Philosophy at Auburn
University; author of Reason
and Value: Aristotle versus Rand; Editor of the Libertarian
Nation Foundation periodical Formulations;
and an Adjunct Scholar of the Ludwig
von Mises Institute. He received his Ph.D. from Cornell in 1992,
and maintains the website Praxeology.net,
as well as the web journal In
a Blog’s Stead.

On
October 11th I received the following bizarre note from Mr. Black:

I have
sent these to two others in your circle and I send it to you
as well.

Dear Sir:

Being on
a 40-city 24×7 book tour for War Against the Weak. I
am writing this from an airplane, and I regret my brevity. Catching
up on some email from a few weeks back I have now come across
your remarks and those of your like-minded friends defending
Spencer.

You wrote,
as shown below: “Spencer, of course, was a radical liberal,
steadfastly opposed to all coercive state control over the individual;
associating Spencer with compulsory sterilization, or indeed
compulsory anything, is ludicrous.”

You are
correct in that statement, and the only thing ludicrous in this
matter is that you and your quoted and unquoted colleagues think
that I “defamed” Spencer by suggesting he was indeed linked
to and advocating compulsory sterilization or eugenics. This
is idiotic. Let me be explicit. Spencer was not adcoating [sic]
or responsibility [sic] for coercive sterilization, Darwin
was not, Malthus was not. Nor is the Holy Bible a justification
for the KKK or the Inquisition. My book is about the distortion
of 19th Century ideas and 20th Century science to create the
sham science eugenics which misused every notion they could
grapple.

There has
been no defamation by me of Spencer – only a defamation
of me by you those [sic] in your circle who have falsely
and deliberately circulated this notion that I blame Spencer
for the ideas implemented by American and Nazi eugenics. I do
not. Repeat, I do not. Now kindly remove all such references
from the Internet, cease your campaign of falsity, and spread
the word amongst your colleagues that I know the true definition
of defamation, libel and slander.

edwin black

I have no
idea what the phrases “your circle,” “your like-minded friends,”
and “your quoted and unquoted colleagues” refer to (I am the only
author quoted in his letter), unless he just means people who
read my columns. (I’m aware that my article has been cited favorably
by other critics of Mr. Black’s work, and I’ve seen some evidence
that attempts may have been made, by parties unknown, to suppress
those criticisms – see my blog
entry for September 18th – but I’m not personally acquainted
with any of the people involved, nor am I involved in a “campaign”
against anybody, unless writing a negative book review
(!) can be so described.)

But since
Mr. Black has apparently sent his allegations of defamation against
me to other (unnamed) persons, I feel it is appropriate for me
to post his letter and to respond publicly.

Mr. Black
accuses me of “defaming” him by attributing to him the following
theses:

1. Herbert Spencer was an advocate of compulsory sterilization.

2. Herbert Spencer bears responsibility for the later movement
   for compulsory sterilization.

Mr.
Black’s accusation is erroneous. Nowhere in my original article
do I attribute to him thesis (a). For the record: Edwin Black does
not accuse Spencer of advocating compulsory sterilization,
and I have never said anything to the contrary. Mr. Black’s assertion
that I have done so is without basis in fact.

Nor do I attribute to him thesis (b), though I do attribute
to him a closely related thesis. I claim in my article that Mr.
Black’s book “treat[s] the campaign for compulsory sterilization
as a natural outgrowth of Herbert Spencer’s philosophy.” In short,
I describe Mr. Black as holding that:

3. Herbert Spencer bears responsibility for contributing to an
   intellectual climate that helped to bring about compulsory sterilization.

In
addition, my article also attributes to him the claim that:

4. Herbert Spencer “completely denounced charity,” favored the
   strong over the weak, and advocated allowing the unfit to die
   off.

Now thesis
(c) bears some resemblance to thesis (b), but it is not the same
thesis. (For a defense of the distinction between being responsible
for X and being responsible for contributing to a climate leading
to X, see David Kelley's book The
Contested Legacy of Ayn Rand, especially Chapter 3.) So
I’m happy to take Mr. Black’s word for it that he does not hold
thesis (b). But then I never attributed thesis (b) to Mr. Black
in the first place, any more than I attributed (a). I did, and
do, attribute (c) and (d). Rebutting his thesis (d) was in fact
the central point of my article, though you’d never guess it from
Mr. Black’s reply, which utterly ignores the subject of thesis
(d), and reads as though my concern had been compulsory sterilization
and nothing else. Compulsory sterilization was not even the
main, let alone the sole, topic of my article.

In short,
the criticisms Mr. Black complains about are criticisms I did
not make, and the criticisms I actually made are ones that Mr.
Black’s response says nothing to dispel.

My original
article fully documents my claim that Mr. Black asserts thesis
(d). It also fully documents my claim that thesis (d) is false.
If falsely asserting thesis (d) does not count as a defamation
of Spencer, I can’t imagine what would. (I also criticized Mr.
Black for misdescribing the theological position of Social
Statics. That’s not a defamation, exactly, but it is certainly
a worrisome inaccuracy in a book that prides itself on rigorous
fact-checking.) If Mr. Black thinks I am wrong to describe him
as defaming Spencer, then he must show either that thesis (d)
is true, or else that his book does not after all assert thesis
(d). So far Mr. Black has done neither.

What about thesis (c)? In my original article I describe Mr. Black’s
book as suggesting not only that Spencer held repugnant ideas, but
also that the influence of his ideas naturally led in the
end to the 20th century’s campaigns for compulsory sterilization.
In offering this interpretation, have I misrepresented what Mr.
Black wrote? Judge for yourself:

Mr. Black’s main discussion of Herbert Spencer occurs in the
book’s opening section, which is titled “From Peapod to Persecution.”
The obvious implication is that this section describes the small
beginnings (peapod) from which the later eugenics movement (persecution)
grew. The organic metaphor of “peapod” also implies that the movement
was a natural outgrowth of these early beginnings rather
than a perversion of them.

After a brief, hostile, and thoroughly inaccurate summary of
Social Statics, Spencer’s thought is classified among the
“new philosophies [that] suggested society would only improve
when the unwashed classes faded away.” (p. 12) The reader is clearly
invited to conclude that coercive measures to help these
classes fade away are a logical extension of Spencer’s ideas.
(Mr. Black’s treatment of Spencer is incidentally far more hostile,
and insinuates far more affinity with the eugenics movement, than
anything he says about Malthus or Darwin.)

This implication is strengthened by Mr. Black’s treatment of
Buck v. Bell, the notorious case in which Justice Oliver
Wendell Holmes upheld compulsory sterilization. Notice how Mr.
Black introduces the issue of Spencer’s influence:

Buck
v. Bell would be decided in May of 1927. But the eighty-six-year-old
Holmes was in many ways defined by the Civil War and ethically
shaped by the nineteenth century. While recovering from the wounds
of Chancellorsville, his reading included Spencer's Social
Statics, the turning-point tract that advocated social Darwinism
and so significantly influenced Galtonian thought. Spencer argued
the strong over the weak, and believed that human entitlements
and charity itself were false and against nature. Indeed, Holmes’
1881 lecture series in The Common Law also asserted that
the idea of inherent rights was “intrinsically absurd.”
(War Against the Weak, p. 119)
In this passage
Mr. Black not only grossly mischaracterizes Spencer’s views (which,
as I’ve shown, were in fact diametrically opposed to the ones described),
but he clearly implies that Spencer’s ideas were among the nineteenth-century
influences that “ethically shaped” Holmes’ thinking and thereby
helped determine the outcome of Buck v. Bell. Mr. Black appeals
to Spencer’s influence to explain Holmes’ decision in Buck
v. Bell; otherwise a reference to Spencer in this paragraph
would be pointless. And there is no suggestion that Holmes misused
or perverted Spencer’s teachings. On the contrary, the phrase
“Holmes … also asserted” plainly suggests, in context, that Holmes
and Spencer were in agreement on fundamentals, and that Holmes was
simply taking Spencer’s ideas to their logical conclusion. (The
fact that Holmes’ most famous reference to Spencer was hostile is
not mentioned.)

Given that Mr. Black asserts thesis (d), there is nothing surprising
in his also being committed to thesis (c). Indeed, if thesis (d)
were true, that would be an excellent reason for believing
thesis (c). Unfortunately, it is the only reason for believing thesis (c). Hence if (d) falls, as it must, (c)
falls as well.

In short, the theses Mr. Black repudiates – (a) and (b)
– are theses I never attributed to him, and the theses I
do attribute to him – (c) and (d) – he ignores. Thesis
(d) is explicitly asserted in his book (see the passages quoted
in my original article), while thesis (c) is unmistakably implied.
Both (c) and (d) are demonstrably false (again, as I showed in
my original article).

I am astonished by Mr. Black’s closing suggestion that criticisms
of his book should be “remove[d] from the Internet” rather than
answered. That is not my conception of how free civil discussion
operates. I have not, for example, written secret notes to Mr.
Black’s publisher demanding that his book be withdrawn from circulation.
Instead I have answered Mr. Black’s assertions in a public forum,
presented my evidence, and left the verdict to my readers. Doesn’t
Mr. Black owe his readers the same courtesy?

As I mentioned above and elsewhere, there are indications that some online criticisms of Mr.
Black’s book have been silently suppressed. A Google
search on my name and his reveals numerous webpages on which critical
reviews of his book, citing my article, have been mysteriously
deleted (they’re in the “cached” but not the current version of
the pages), though comments favorable to the book remain untouched.
I sincerely hope that Mr. Black himself has not been involved
in this apparent campaign to suppress criticism of his work, since
that would be a far more serious breach of professionalism than
anything I originally complained of in the book itself.

In closing: Mr. Black’s charge that I have misrepresented his
book is false. Instead he has misrepresented my article. More
importantly, he has misrepresented the views of Herbert Spencer,
a hero of liberty, by recycling (whether knowingly or unknowingly)
ancient smears first invented in the 19th century by Spencer’s
political enemies. Mr. Black has not yet addressed my criticisms;
instead he has denounced other criticisms that I did not make,
and he has by his own testimony sent accusations of defamation
against me to persons he does not name.

I stand by my original article,
and I request a retraction of Mr. Black’s misrepresentations both
of Spencer and of myself.

October
13, 2003

Roderick
T. Long [send him mail]
is Associate Professor of Philosophy at Auburn
University; author of Reason
and Value: Aristotle versus Rand; Editor of the Libertarian
Nation Foundation periodical Formulations;
and an Adjunct Scholar of the Ludwig
von Mises Institute. He received his Ph.D. from Cornell in 1992,
and maintains the website Praxeology.net,
as well as the web journal In
a Blog’s Stead.

No, he didn’t use the L-word. But he announced his plan, should
he be elected, to create a “Department of Peace” to bring about
a “transformation of our society” by “making non-violence an organizing
principle.”

See, all along I’d been misinterpreting him. Kucinich’s campaign
website gives a fairly thorough rundown of the programs he’d
like to enact. These include “massive public works to rebuild our
cities, our water systems, our public transportation systems, our
schools, our parks, our public energy systems,” “ample free television
time for candidates,” “break-up of the media monopolies,” a “regulatory
structure which puts a ceiling on drug company profits,” restrictions
on political advertising, a Federal
charter of corporate responsibility, and a “financial commitment
to providing healthy drinking water to all the world’s people.”
He also wants to “strengthen and enforce air and water regulation,”
“empower farmers in the marketplace by providing incentives to join
a collective bargaining unit,” and “bring suit in federal court
if an agribusiness doesn’t bargain in good faith.” He is particularly
insistent that “All water shall be considered to be forever in the
public domain” (an interesting proposal, given that every human
being is 70% water).

Now all this time I’ve been unfair to the man. I’d been assuming
that he wanted to use the coercive power of the State to
do all these things. So naturally I’d taken him to be an advocate
of massive increases of violence in society – since laws
are, after all, backed up by governmental force. Now it turns out,
however, that Kucinich is a man committed to nonviolence, a man
who wants to make nonviolence an “organizing principle” of our society.
But just as the State represents violence as an organizing principle
of society, so the free market represents nonviolence – mutual
consent – as an organizing principle of society. If Kucinich is
the enthusiast for nonviolence that he claims to be, then he can
only be a libertarian.

I infer, then, that Kucinich can’t really want to enforce
that laundry list of pet projects that he advertises on his website.
That would be violence, after all. As Ludwig von Mises writes:

It is important to remember that government interference
always means either violent action or the threat of such action.
The funds that a government spends for whatever purposes are levied
by taxation. And taxes are paid because the taxpayers are afraid
of offering resistance to the tax gatherers. They know that any
disobedience or resistance is hopeless. As long as this is the state
of affairs, the government is able to collect the money that it
wants to spend. Government is in the last resort the employment
of armed men, of policemen, gendarmes, soldiers, prison guards,
and hangmen. The essential feature of government is the enforcement
of its decrees by beating, killing, and imprisoning. Those who are
asking for more government interference are asking ultimately for
more compulsion and less freedom.

Since nobody with Kucinich’s reverence for nonviolence could possibly
want to increase “violent action or the threat of such action,”
he plainly couldn’t seriously be calling for his projects to be
governmentally enforced. He must instead be trying to persuade people
to implement these programs voluntarily.

The only alternative would be to assume that Kucinich regards, or
expects us to regard, governmental edicts “as
though they were incantations, passing directly from decree
to result, without the inconvenience of means.” And what sensible
person could be so deluded?

September
27, 2003

Roderick
T. Long [send him mail]
is Associate Professor of Philosophy at Auburn
University; author of Reason
and Value: Aristotle versus Rand; Editor of the Libertarian
Nation Foundation periodical Formulations;
and an Adjunct Scholar of the Ludwig
von Mises Institute. He received his Ph.D. from Cornell in 1992,
and maintains the website Praxeology.net,
as well as the web journal In
a Blog’s Stead.

The latest dishonor to Spencer’s memory turns up in War
Against the Weak: Eugenics and America's Campaign to Create a Master
Race, a new book by Edwin Black (best known as the author
of IBM
and the Holocaust). Black’s subject is the American eugenics
movement, which in the heyday of its influence was responsible for
the forcible sterilization of thousands of Americans, and which
also contributed, ideologically and sometimes financially, to the
rise of Nazism in Germany. It’s an ugly and important story that
needs to be told.

But what should rouse the ire of any intellectual historian is Black’s
outrageous attempt to treat the campaign for compulsory sterilization
as a natural outgrowth of Herbert Spencer’s philosophy. Spencer,
of course, was a radical liberal, steadfastly opposed to all coercive
state control over the individual; associating Spencer with compulsory
sterilization, or indeed compulsory anything, is ludicrous.
As Spencer wrote in his 1851 classic Social
Statics:

The desire to command is essentially a barbarous desire. … Command
cannot be otherwise than savage, for it implies an appeal to force,
should force be needful. … Command is the foe of peace, for
it breeds war of words and feelings – sometimes of deeds.
It is inconsistent with the first law of morality. It is radically
wrong. … “You must do not as you will, but as I will,” is the
basis of every mandate, whether used by a planter to his Negro,
or by a husband to his wife. (pp. 144–5)

Voluntary cooperation, Spencer held, is in the nature of things
both more just and more efficient than force and intimidation. Accordingly,
Spencer condemned slavery, imperialism, sexual inequality, censorship,
economic regulation, and every other violation of his Law of Equal
Freedom: “Every man has freedom to do all that he wills, provided
he infringes not the equal freedom of any other man.” (p. 95) (Spencer
would go on to elaborate and develop the radical antistatism of
Social Statics in such later works as The
Principles of Sociology, The
Principles of Ethics, and The
Man Versus the State.)

So what common ground could there be between Spencer and the eugenicists?
Both, to be sure, were “Social Darwinists,” if that means that both
thought there were important sociopolitical lessons to be drawn
from evolutionary biology. But Spencer and the eugenicists drew
opposite lessons. For the eugenicists, the moral of evolutionary
biology was that the course of human evolution must be coercively
managed and controlled by a centralized, paternalistic technocracy.
For Spencer, by contrast, the moral was that coercive, centralized,
paternalistic approaches to social problems were counterproductive
and so would tend to be eliminated by the spontaneous forces of
social evolution, which would instead favor a system of fully consensual
human relationships.

Admittedly, industrialist Andrew Carnegie was an admirer of Herbert
Spencer, and the Carnegie Institution appears to have played an
important role in the eugenics movement. But so what? I do not know
how far Carnegie himself personally supported the tyrannical policies
that Black discusses, but suppose he supported them up to the hilt;
if Carnegie said nice things about Spencer, but also supported policies
antithetical to everything Spencer stood for, this can hardly be
laid at Spencer’s door. In short, there are no grounds for
linking one of the great libertarian heroes of the 19th century
with one of the great statist evils of the 20th.

With Charity Toward None?

On what basis, then, can Black associate Spencer with compulsory
sterilization? Black’s answer lies in his peculiar synopsis of the
argument of Social Statics:

In the 1850s, agnostic English philosopher Herbert Spencer published
Social Statics, asserting that man and society, in truth,
followed the laws of cold science, not the will of a caring, almighty
God. Spencer popularized a powerful new term: “survival of the
fittest.” He declared that man and society were evolving according
to their inherited nature. Through evolution, the “fittest” would
naturally continue to perfect society. And the “unfit” would naturally
become more impoverished, less educated, and ultimately die off,
as well they should. Indeed, Spencer saw the misery and starvation
of the pauper classes as an inevitable decree of a “far-seeing
benevolence,” that is, the laws of nature. He unambiguously insisted,
“The whole effort of nature is to get rid of such, and to make
room for better. … If they are not sufficiently complete to
live, they die, and it is best they should die.” Spencer left
no room for doubt, declaring, “all imperfection must disappear.”
As such, he completely denounced charity and instead extolled
the purifying elimination of the “unfit.” The unfit, he argued,
were predestined by their nature to an existence of downwardly
spiraling degradation. (Black, p. 12)

From declaring that the unfit should be allowed to die off, Black
suggests, it is only a short step to declaring that they should
be forcibly sterilized, if not killed outright.

That something is awry in Black’s synopsis is already evident from
its opening sentence, which describes Social Statics as the
work of an “agnostic” who rejected the “will of a caring, almighty
God” in favor of the “laws of cold science.” Contrast this description
with what we actually find in the pages of Social Statics:

[T]here are few if any among civilized people who do not agree
that human well-being is in accordance with the Divine will. The
doctrine is taught by all our religious teachers; it is assumed
by every writer on morality; we may therefore safely consider
it as an admitted truth. … Starting afresh, then, from the admitted
truth, that human happiness is the Divine will, let us look at
the means appointed for the obtainment of that happiness and observe
what conditions they presuppose. … Now if God wills man’s happiness,
and man’s happiness can be obtained only by the exercise of his
faculties; then … it is man’s duty to exercise his faculties,
for duty means fulfillment of the Divine will. That it is
man’s duty to exercise his faculties is further proved by the
fact that what we call punishment attaches to the neglect
of that exercise. … But the fulfillment of this duty necessarily
presupposes freedom of action. … He has Divine authority, therefore,
for claiming this freedom of action. God intended him to have
it; that is, he has a right to it. (Social Statics,
pp. 61, 67–69)

How
could any reader of this passage take Social Statics to be
a book committed to theological agnosticism and the rejection of
a benevolent deity? Obviously, no reader could; and Black’s description,
I therefore infer, is not based on a reading of the book Social
Statics.

What is it based on? Well, as a matter of fact Spencer eventually
did adopt an agnostic position, which he defended in First
Principles (1860–62); in his subsequent ethical writings
he accordingly dispensed with the theological underpinnings of Social
Statics, instead defending the same normative conclusions on
purely secular grounds. (In effect, Spencer came to treat “human
happiness is desirable” as a basic premise rather than, as in Social
Statics, as a deduction from “God wills human happiness.”) My
hypothesis, then, is that Black has relied on background information
about the later Spencer and then mistakenly assumed that the early
Spencer’s position was the same. Black cites Social Statics
in his footnotes; but he clearly has not read it.

What, then, about the main charge: that Spencer “completely denounced
charity” and advocated allowing the unfit to die off? This accusation
is impossible to square with the text of Social Statics (or
with any of Spencer’s other writings, for that matter). In referring
to the process by which nature weeds out the unfit, Spencer wrote
that “in so far as the severity of this process is mitigated by
the spontaneous sympathy of men for each other, it is proper that
it should be mitigated” (Social Statics, p. 340); in short,
Spencer endorsed charity. Such sympathy is to be condemned,
he maintained, only when it either “prompts to a breach of
equity” and so “originates an interference forbidden by the law
of equal freedom” (p. 340) – i.e., Spencer was condemning state-enforced
charity, not voluntary (“spontaneous”) charity – or else when it
gives rise to those specific forms of charity that encourage
dependence and reward idleness and folly.

Now it is only against this injudicious charity that the foregoing
argument tells. To that charity which may be described as helping
men to help themselves it makes no objection – countenances it,
rather. … Accidents will still supply victims on whom generosity
may be legitimately expended. Men thrown upon their backs by unforeseen
events, men who have failed for want of knowledge inaccessible
to them, men ruined by the dishonesty of others, and men in whom
hope long delayed has made the heart sick may, with advantage
to all parties, be assisted. Even the prodigal, after severe hardship
has branded his memory with the unbending conditions of social
life to which he must submit, may properly have another trial
afforded him. (Social Statics, p. 291)

Spencer also maintained the same pro-charity position throughout
his later works – devoting, for example, ten chapters of the final
volume of Principles of Ethics (published in 1893) to the
subject of “Positive Beneficence.” If there is a deficiency of charity
here, it is on Black’s part, not Spencer’s.

Spencer praises the “far-seeing benevolence” of evolutionary selection,
not because he wants to see the unfit weeded out, but because past
selection has led to the emergence of beings with a moral sense
advanced enough to moderate the operation of evolutionary selection
now. In Spencer’s eyes, charity (at least of the judicious and voluntary
kind) represents not a transgression against evolution, but rather
a transcendence of one form of evolution in favor of a higher form:
“And although by these ameliorations the process of adaptation must
be remotely interfered with, yet in the majority of cases it will
not be so much retarded in one direction as it will be advanced
in another.” (Social Statics, pp. 291-2)

But didn’t Spencer regard the mental and moral inferiority of the
lower classes as the cause of their poverty? On the contrary, to
those who maintained such views Spencer replied with asperity:

It is very easy for you, O respectable citizen, seated in your
easy chair, with your feet on the fender, to hold forth on the
misconduct of the people – very easy for you to censure their
extravagant and vicious habits …. It is no honor to you that
you do not spend your savings in sensual gratification; you have
pleasures enough without. But what would you do if placed in the
position of the laborer? How would these virtues of yours stand
the wear and tear of poverty? Where would your prudence and self-denial
be if you were deprived of all the hopes that now stimulate you
…? Let us see you tied to an irksome employment from dawn till
dusk; fed on meager food, and scarcely enough of that …. Suppose
your savings had to be made, not, as now, out of surplus income,
but out of wages already insufficient for necessaries; and then
consider whether to be provident would be as easy as you at present
find it. Conceive yourself one of a despised class contemptuously
termed “the great unwashed”; stigmatized as brutish, stolid, vicious
… and then say whether the desire to be respectable would be
as practically operative on you as now. … How offensive it is
to hear some pert, self-approving personage, who thanks God that
he is not as other men are, passing harsh sentence on his poor,
hard-worked, heavily burdened fellow countrymen …. (Social
Statics, pp. 203–5)

Are these passages buried somewhere in Spencer’s text so that Black
could easily have missed them? On the contrary, most of them are
located on the very pages that Black cites. (My page references
are to the same edition of Social Statics that Black cites:
Robert Schalkenbach Foundation, New York, 1970.) Once again, Black
is confidently citing and describing a book he apparently has not
read.

This is rather embarrassing for an author who begins his book with
the assertion:

Every fact and fragment and its context was supported with black
and white documents, then double-checked and separately triple-checked
in a rigorous multistage verification regimen by a team of argumentative,
hairsplitting fact-checkers. (Black, p. xxii)

Obviously the hairsplitting fact-checkers were napping over Black’s
synopsis of Social Statics.

Spencer
and the Supreme Court

Later in War Against the Weak, Black asserts that “Spencer
argued the strong over the weak.” (p. 119) This too is grotesquely
false (or would be if it were grammatical). In fact Spencer maintained
that “forcible supplantings of the weak by the strong” belonged
to a relatively primitive phase in the development of human civilization,
one that was beginning to wane, and deserved to wane, in favor of
an “advanced social state” based on mutual respect and mutual benevolence.
(Social Statics, pp. 374–5) Heaping scorn upon British
attempts to “justify our colonial aggressions by saying that the
Creator intends the Anglo-Saxon race to people the world” (p. 142),
Spencer condemned the “piratical spirit” (p. 322) of European imperialism,
with its “deeds of blood and rapine” inflicted on “subjugated races”
by “so-called Christian nations” (pp. 328–29). When Spencer
says that the ill-adapted must give way to the well-adapted, part
of what he means is that social systems involving the oppression
of the weak are ill-adapted and must give way to a more sophisticated
social system enshrining equal justice for all.

In
a particularly surreal section, Black blames Supreme Court Justice
Oliver Wendell Holmes’ decision in Buck
v. Bell on Holmes’ alleged admiration for Herbert Spencer.
This is the famous case in which Holmes ordered the compulsory sterilization
of a mentally impaired woman, on the grounds that “Three generations
of imbeciles are enough.” If “the public welfare may call upon the
best citizens for their lives” (e.g., in time of war), all the more,
Holmes reasoned, may it demand “lesser sacrifices” from “those who
already sap the strength of the State.”

Attributing Holmes’ decision in Buck v. Bell to an admiration
for Herbert Spencer is bizarre for two reasons. First, nothing could
be more antithetical to Spencer’s outlook than the notion that the
State has the authority to require sacrifices of any sort from its
citizens. The fact that the woman in question was mentally impaired
would be of little relevance from Spencer’s point of view, since
he always argued strenuously that inferiority of intellect is no
ground for restriction of liberty; from the fact that A’s faculties
are inferior to B’s, Spencer pointed out, it would be a non sequitur
to infer that A should be prevented from exercising such faculties
as A does possess. (Social Statics, pp. 141, 156)

Second, Holmes’ attitude toward Spencer was famously one of antagonism,
not admiration. In his oft-quoted dissent in Lochner
v. New York, Holmes, defending governmental interference
with private contracts, contemptuously dismissed Spencer’s Law of
Equal Freedom:

The liberty of the citizen to do as he likes so long as he does
not interfere with the liberty of others to do the same, which
has been a shibboleth for some well-known writers, is interfered
with by school laws, by the Post Office, by every state or municipal
institution which takes his money for purposes thought desirable,
whether he likes it or not. The Fourteenth Amendment does not
enact Mr. Herbert Spencer’s Social Statics. … I think
that the word liberty in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion.

Historians have sometimes puzzled over how to reconcile the “progressive”
character of Holmes’ dissent in Lochner with the “reactionary”
character of his decision in Buck. But Spencer would not
have been puzzled; he would have recognized that both of these Holmesian
positions emanated from the same fundamental contempt for individual
autonomy, and so from a sociopolitical perspective that was the
antipode of Spencer’s own.

Black goes on to quote various fascistic-sounding opinions of Holmes
with the suggestion that Spencer would agree: that the notion of
inherent human rights is “intrinsically absurd,” that truth is “the
majority vote of that nation that could lick all others,” that “force,
mitigated so far as it may be by good manners, is the ultima
ratio,” and that “the faith is true and adorable which leads
a soldier to throw away his life in obedience to a blindly accepted
duty, in a cause he little understands, in a plan of a campaign
of which he has no notion, under tactics of which he does not see
the use.” (Black, pp. 119–120) (Ironically, the one opinion
Black praises Holmes for (p. 119) – his famous “shouting fire
in a theatre” dictum – comes from Schenck
v. United States, a case in which Holmes ruled that war
protestors have no right to free speech; one suspects (hopes?) that
Black did not check the context of that quote either.)

Each of these opinions would be anathema to Spencer. Spencer despised
forcible compulsion, and devoted an entire essay (“The Great Political
Superstition,” in The Man Versus the State) to denouncing
the identification of truth with majority vote. Far from admiring
the blindly obedient soldier praised by Holmes, Spencer angrily
wrote: “When men hire themselves out to shoot other men to order,
asking nothing about the justice of their cause, I don’t care if
they are shot themselves.” (“Patriotism,” in Facts
and Comments, Ch. 20) As for the notion that Spencer rejected
inherent human rights, the barest glance at the table of contents
of Social Statics or The Principles of Ethics will
demonstrate its absurdity. Holmes’ credo was that might makes right;
Spencer’s was that might must yield to right.

I doubt that Edwin Black himself harbors any particular animus against
Herbert Spencer. (His smearing of today’s genetic scientists as
mere crypto-eugenicists is perhaps less innocent, but that’s a separate
issue.) Black simply retails what has become the standard textbook
caricature of Spencer. But that caricature is false from beginning
to end, and is easily seen to be false by anyone who will take the
trouble to read Spencer rather than relying on canned summaries.
As George Smith wrote in 1978:

Probably
no intellectual has suffered more distortion and abuse than Spencer.
He is continually condemned for things he never said – indeed,
he is taken to task for things he explicitly denied. The target
of academic criticism is usually the mythical Spencer rather than
the real Spencer; and although some critics may derive immense satisfaction
from their devastating refutations of a Spencer who never existed,
these treatments hinder rather than advance the cause of knowledge.
(Smith, p. 293)

In any case, Black is perpetuating, whether through malice or through
laziness, an injustice against one of history’s most liberal and
humane philosophers. And the inaccuracy of his discussion of Spencer,
in what Black claims is a thoroughly researched and painstakingly
triple-checked book, casts doubt on all the rest of Black’s research.
If War Against the Weak is this wrong about Spencer, one
has to wonder: what else is it wrong about?

August
28, 2003

Roderick
T. Long [send him mail]
is Associate Professor of Philosophy at Auburn
University; author of Reason
and Value: Aristotle versus Rand; Editor of the Libertarian
Nation Foundation periodical Formulations;
and an Adjunct Scholar of the Ludwig
von Mises Institute. He maintains the website Praxeology.net,
as well as the web journal In
a Blog’s Stead.

by Roderick T. Long

I’ve been fortunate enough to have spent over half my life in the libertarian movement, and I am very grateful to have received so much in the way of friendship, insight, intellectual stimulation, emotional support, and material assistance from its members over the years.

I owe my libertarianism to two women: my mother, and Ayn Rand.

My mother, Jorie Blair Long, comes from a family of individualists and independent thinkers, and I absorbed those values early on. From her I learned that people should rely on their own judgment, seek out their own destiny, and not dictate one another’s goals or poke their noses into one another’s business.

My mother’s political convictions were individualist as well – her family were all staunch Roosevelt-despisers of the “Old Right” tradition – but it was initially at the personal rather than at the political level that I was influenced by these values. Indeed, as a child I was thoroughly apolitical. Admittedly, I do recall being shocked and incredulous when, at the age of eleven or so, I discovered that the federal government considers a privately built or bought mailbox to be federal property. (My first episode of libertarian outrage!) But for the most part I was utterly ignorant of and indifferent to politics, and barely even knew who the President was; the political leaders who interested me were Agamemnon, and King Arthur, and Aragorn son of Arathorn.

The result of this indifference was that despite having fairly stern moral principles, I had really no political principles whatsoever. I recall, for example, writing essays for my high school social studies class in which I maintained that moral constraints do not apply in war, that a profession’s right to strike is inversely proportional to its social usefulness, and other such drivel. In my defense, I can say only that I at least held these views with no particular strength of conviction: I had given the questions little thought, because I found social studies an unbearably boring subject to think about. I had enjoyed reading books like 1984, Animal Farm, and Brave New World, but I hadn’t seen them as calling into question the political institutions of our country.

Although I had never been interested in exploring the political application of my personal values, the seed had been sown by my upbringing. The harvest came in 1979, when, at the age of 15, I read an article in Starlog magazine called, I think, “The Science Fiction of Ayn Rand.” (Incredibly, this now virtually unknown article was illustrated by the famous fantasy artist Boris Vallejo.) Its descriptions of Anthem and Atlas Shrugged were intriguing, and as an avid science-fiction reader I decided to give them a look.

For me, as for so many 15-year-olds before me, Atlas Shrugged was a turning point. Rand’s vision hit me like a magnesium flare dispelling murky vagueness; she converted me not just to libertarianism but to philosophy as such. I quickly moved on to reading all of Rand’s other books, both fiction and nonfiction (several of which my mother turned out to own already), then to reading authors Rand recommended, and authors those authors recommended, and so on. My libertarian education had begun.

I entered Harvard in 1981, certainly planning to study a bit of philosophy, but still entertaining thoughts of majoring in French or theatre or creative writing instead. In my senior year of high school I had taken a course at Dartmouth on continental philosophy, which I found to be an intellectual emetic; in light of Rand’s grim view of contemporary academia, I had little reason to expect any better of analytic philosophy. But after my first analytic course at Harvard – it was Roderick Firth’s “Types of Ethical Theory” – I was hooked. I soon realized that no other subject had any chance of luring me away, and I became a philosophy major. Though I was still a quasi-Randian, I had never brought my mind entirely into captivity to Rand (I reckon I would have lasted in her Collective just about as long as Rothbard did), and I soon began integrating the insights I had gained from Rand with the new ideas I was learning from mainstream philosophy. My foremost interests were ethics, philosophy of science, and Greek philosophy – especially Aristotle, who was beginning to displace Rand as my chief philosophical muse.

But my libertarian education continued as well; in the library stacks I was hunting down works by John Locke, Adam Smith, the Founding Fathers, Frederic Bastiat, Herbert Spencer, Ludwig von Mises, Henry Hazlitt, Isabel Paterson, Rose Wilder Lane, Murray Rothbard, Robert Heinlein, Tibor Machan, Milton Friedman, David Friedman, George Reisman, and Robert Nozick. (No Hayek, for some reason – my introduction to spontaneous-order theory came instead via the physical sciences, through courses on “Space, Time, and Motion” and “Chance, Necessity, and Order” by astrophysics professor David Layzer.) I also learned a great deal by writing for Harvard’s libertarian and conservative student newspapers, as well as for the M.I.T-based Objectivist periodical ERGO. And nearly everything I know about constitutional law I learned from my libertarian/conservative roommate Mark DePasquale. (I never took a course from Nozick; his “Best Things in Life” course, focusing on love, sex, and – I am not making this up – ice cream, sounded too touchy-feely to me. Nozick’s worst book, The Examined Life, was a product of that course, so I probably chose wisely.)

It was through an ad in the Harvard Libertarian that I discovered the Institute for Humane Studies. In 1986, my first year of graduate study at Cornell, I attended my first IHS conference. The lineup of lecturers was, for me, a fantastic feast of brain candy: Randy Barnett, Walter Grinder, Israel Kirzner, Don Lavoie, Leonard Liggio, Ralph Raico, and George Smith. (I remember Ralph asking me “Are you a Randroid?” To this I replied “I don’t think of myself as a Randroid” – which, as he quite reasonably pointed out, did not answer his question. But then again, since neither a Randroid nor a non-Randroid would admit to being a Randroid, it surely follows that Ralph’s very question was some sort of violation of conceptual grammar.) The IHS was to be an enormous influence in my life; I am grateful in particular to the loyal support of Walter Grinder, the Institute’s academic director at the time.

Over the next few years, my continuing association with the IHS had several beneficial results (in addition to the welcome financial aid!): it introduced the ideas of Friedrich Hayek into my intellectual evolution; it plugged me into an invaluable network of libertarian academics and institutions; and it radicalized me politically. (Yes, the IHS was radical in those days.) In 1987, thanks to a combination of IHS influence, Jonathan Kwitny’s excellent book Endless Enemies, the grotesque GOP primary debates (Bush-Dole-Kemp-Haig-DuPont-Robertson, ugh), and my increasing attraction to the cultural left, I was finally shaken loose from such Randian-style bad habits as hawkish foreign policy and the Republican Party. I joined the Libertarian Party on Thanksgiving Day, 1987.

By 1991, during my first year of teaching at UNC Chapel Hill – and in the face of the insanity surrounding the Gulf War – I had also come to reject the necessity of the state. I had initially resisted anarchism, convinced by Isabel Paterson’s God of the Machine that liberty could be secured only through a constitutional structure; after years of wrestling with the idea, I now came to see that market anarchy is such a structure. I had become what might be called a “left-Rothbardian.” (How big a change this was I’m not sure. When told of my conversion to anarchism, my mother and my ex-girlfriend both replied: “Oh? I thought you already were an anarchist.”)

I began to develop a moral and political philosophy that synthesized what I took to be the major insights of the Greek philosophers, the mediaeval Scholastics, Rand, Hayek, Rothbard, mainstream analytic philosophy, and the cultural left. (Admittedly, a stew unlikely to be precisely to anyone’s taste but my own.)

Through the IHS network I had come into contact with Fred Miller and his Social Philosophy and Policy Center. Now Fred invited me to spend the 1991–92 academic year there, on leave from Chapel Hill, to finish up my doctoral dissertation on Aristotle and indeterminism; this enabled me to receive my Ph.D. from Cornell that spring. While in Bowling Green I sat in on Fred’s graduate seminar on rights theory, which sparked new directions in my thinking. (All the seminar participants tried their hands at constructing deductive arguments with numbered steps deriving libertarian rights from Randian self-interest. Mine had the distinction of being the longest and weirdest.) In subsequent years, Fred was to prove an enormous help to my career, generously guiding many conference invitations and other opportunities my way.

In Fred’s seminar I had championed the “flourishing” over the “survival” interpretation of self-interest. One welcome bit of fallout from this was that David Kelley, who had led the exodus of the sane and nice people out of the Randian movement, invited me to his Institute for Objectivist Studies to give several lectures critiquing Rand’s ethics and epistemology from my own post-Randian point of view; these lectures eventually became my book Reason and Value: Aristotle versus Rand.

It was during my Chapel Hill years that I met Richard Hammer, a North Carolina engineer who sent me his manifesto Toward a Free Nation. Both inspired and frustrated by the history of attempts to found a new libertarian country, Rich had become convinced that such projects had failed, not because of a lack of potential inhabitants or resources, but because of the absence of believable descriptions of the relevant institutions. Impressed by his level-headed approach to what is all too often a half-baked project, I became involved in Rich’s Free Nation Foundation, a small think tank devoted, in effect, to libertarian constitutional design. Writing for FNF and discussing issues with the other members helped me to work out a more fully developed anarcho-capitalist political theory.

In 1997 I was denied tenure at Chapel Hill. Though it certainly didn’t seem so at the time, this was one of the best things that ever happened to me – for in 1998 I came to Auburn, the coolest philosophy department in the world. Here I soon found myself part of two different families of crusading, brass-knuckled rationalists. On the one hand, there were my new colleagues, from whom I would learn more than I’d learned from any philosopher since grad school. On the other hand, there was the Auburn-based Ludwig von Mises Institute, at the forefront of radical libertarian scholarship, in whose programs Lew Rockwell generously invited me to participate.

These two new influences were about to converge in a crucial way. Through Kelly Dean Jolley, one of my departmental colleagues, I became interested in the philosophical approach of Ludwig Wittgenstein (which I had previously dismissed as an obscurantist variant of positivism); through Guido Hülsmann and others at the Mises Institute, I became interested in Mises’ “praxeological” attempt to establish economic law on an a priori rather than an empirical basis. I soon began to see how these two projects connected in interesting ways both to each other and to my standing interest in Aristotelean ethics and moral psychology. This three-way connection is currently the centerpiece of my philosophical research, and serves as the unifying theme of my website, Praxeology.net.

So there’s my story: a Randian at 15, an LP member at 23, an anarcho-capitalist at 27, and a praxeologist at 36. (And despite all of the above, tenured at 38!) What the future holds I can’t say (kaleidic, you know), but it’s a safe bet that whatever I’m working on will have something to do with the Science of Liberty.

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.

Libertarian scholars and free-market enthusiasts
have often pointed to the Icelandic Free State (930-1262) as a positive
example of a society that functioned successfully with little or
no government control. Writing in the Journal
of Legal Studies, economist David Friedman observes that
the Free State "might almost have been invented by a mad economist
to test the lengths to which market systems could supplant government
in its most fundamental functions." As Diamond himself notes:

"Medieval Iceland had no bureaucrats,
no taxes, no police, and no army. … Of the normal functions
of governments elsewhere, some did not exist in Iceland, and
others were privatized, including fire-fighting, criminal prosecutions
and executions, and care of the poor."

But unlike those who see who see the Icelandic
system as a model to emulate, Diamond charges that the Free State's
excessively privatized character made it radically unstable, ultimately
leading to the system's violent collapse in 1262; his essay has
already been cited by The
American Prospect as a crucial resource for those
"making the case against privatization and shrinking government."
So who's right? Does medieval Iceland illustrate privatization's
benefits, or its hazards?

Lying in the North Atlantic between Norway
and Greenland, its northern shores brushing the Arctic Circle, Iceland
is a stark and desolate landscape of basalt and frozen lava, punctuated
by volcanoes, geysers, and glaciers — eerily beautiful for tourists,
though a wearying challenge for farmers. Such a harsh natural environment
might have attracted few immigrants, were it not for a still harsher
political climate back on the mainland. Iceland's first settlers
— Norse and Celto-Norse refugees from King Harald Fairhair's attempt
in the late ninth century to impose centralized control and property
taxes on all of Norway — established what historians call the Icelandic
Free State, or Icelandic Commonwealth, around the year 930. In Diamond's
words, "they privatized government beyond Ronald Reagan’s wildest
dreams" (since Reagan dramatically increased the size and expense
of government over the course of his administration, this is quite
an understatement), "and thereby collapsed in a civil war that
cost them their independence."

This "thereby" is somewhat misleading,
however, since civil strife did not become a serious problem in
Iceland until around 1220, nearly three centuries after the
system was established — and the system's final collapse did not
come until 42 years after that. As I have written elsewhere:
"We should be cautious in labeling as a failure a political
experiment that flourished longer than the United States has even
existed." Indeed, given Diamond's criterion of instability,
the United States cannot be called stable until it survives the
year 2108. (Though one could argue that it has already failed the
test: the United States had to wait only 85 years from its founding
before plunging into a catastrophic civil war, by contrast with
Iceland's 290 years.)

How did the Icelandic Free State work? The
11th-century historian Adam von Bremen described Iceland
as having "no king but the law." The legal system's administration,
insofar as it had one, lay in the hands of a parliament of about
40 officers whom historians call, however inadequately, "chieftains."
This parliament had no budget and no employees; it met only two
weeks per year. In addition to their parliamentary role, chieftains
were empowered in their own local districts to appoint judges and
to keep the peace; this latter job was handled on an essentially
fee-for-service basis. The enforcement of judicial decisions was
largely a matter of self-help (hence Iceland's reputation as a land
of constant private feuding), but those who lacked the might to
enforce their rights could sell their court-decreed claims for compensation
to someone more powerful, usually a chieftain; hence even the poor
and friendless could not be victimized with impunity.

The basis of a chieftain's power within
the political order was the power he already possessed outside
it, in civil society. The office of chieftaincy was private property,
and could be bought or sold; hence chieftaincies tended to track
private wealth. But wealth alone was not enough. As economic historian
Birgir Solvason notes in his masterful
study of the period, "just buying the chieftainship was
no guarantee of power"; the mere office by itself was "almost
worthless" unless the chieftain could "convince some free-farmers
to follow him." Chieftains did not hold authority over territorially-defined
districts, but competed for clients with other chieftains from the
same geographical area.

A chieftain was politician, lawyer, and policeman
rolled into one: he represented his clients in parliament, served
as their advocate in arbitration, and offered them armed assistance
in dispute resolution. If his customers were dissatisfied with the
quality or price of these services, they could switch to a different
chieftain without having to change their physical location; the
relation between chieftain and client could be freely terminated
by either party, so that signing up with a chieftain was rather
like signing up for insurance or long-distance phone service today;
legal jurisdictions were, in effect, "virtual" rather
than physical.

The fact that the provision of "governmental"
services was a competitive rather than a monopolistic enterprise
was arguably one of the Free State's greatest strengths; just as
in any other market, the competitive discipline imposed by the fear
of losing clients to rival service providers served as a check on
inefficiency and abuse of power. Icelandic law owed its resilience
and flexibility to this decoupling of authority from geography.

Diamond finds this competitive legal system
unprecedented and bizarre: "Everywhere else in the world that
I know of, competing chiefs ruled over mutually exclusive territories,
within which everyone else had to be that chief’s follower."
He seems unaware that non-territorial jurisdiction has been a fairly
common phenomenon throughout history; indeed, the prevalence of
non-territorial jurisdiction in medieval Europe is often credited
with explaining the "rise of the West." It is certainly
true, however, that the Free State pressed the principle of non-territorial
jurisdiction farther than most.

While non-territorial jurisdiction has its
admirers, Diamond is certainly not one of them. On the contrary,
he condemns this "weird territorial system" as a "recipe
for chaos":

"Freedmen other than chiefs could choose
their chief and switch alliances, regardless of which chief
happened to reside nearby. A chief's farm became surrounded
by a mosaic of smaller farms, some of them occupied by his own
followers, others by other chiefs' followers. The resulting
feuds fill The Sagas of Icelanders."

Yet in Jesse Byock's Viking
Age Iceland, one of the books on which Diamond claims to
be basing his analysis, we find precisely the opposite information:
the "lack of geographically defined chieftaincies" meant
that no group could claim "exclusive or long-time control over
any one area"; as a result, there were "few territorial
u2018refuge areas'" where "feuding parties lived protected
… by a cluster of kin and friends." This "made sustained
feuding difficult," creating increased incentives for compromise.
In other words, the non-territorial nature of Iceland's legal order
served to decrease, not to increase, the violence of feud. (Diamond
also asserts that Iceland's lack of a strong central government
left it "defenseless against attacks," a charge he substantiates
by recounting an incident from 1627 — at which time Iceland was
under the "protection" of the Danish crown, and the Free
State system Diamond is criticizing had been defunct for nearly
four centuries!)

Reading the Icelandic Sagas initially gives the
impression of unremitting violence — until one notices that most
of the feuds they describe consist of low-casualty skirmishes at
long intervals. Though often referred to as "Vikings,"
Icelanders made their living for the most part through farming and
trade, and violence was sporadic; thanks to the economic incentives
provided by Iceland's legal system, conflicts were settled in court
more often than in combat. Like any good storyteller, the authors
of the Sagas simply skipped over the long boring periods when nobody
was killing anybody.

To keep Icelandic feud in perspective, one may
contrast it with continental Europe, whose princes, blessed with
"mutually exclusive territories," launched massive wars.
As Solvason points out, Icelandic society was "more peaceful
and cooperative than its contemporaries"; in England and Norway,
by contrast, "the period from about 800 to 1200 is a period
of continuous struggle; high in both violence and killings."
Byock contrasts the prolonged and violent civil strife which attended
Christianization in Norway with its relatively swift and peaceful
Icelandic analogue. Icelanders treated the conflict between pagans
and Christians as a feud, to be resolved like any other feud — by
arbitration. The arbitrator decided in favor of Christianity, and
that was that. (So imbued were the Icelanders with the norms of
conflict resolution through arbitration that they dealt with haunted
houses in the same way — trying the ghosts for trespassing, in the
confident expectation that, if found guilty, a good Icelandic ghost
would respect the verdict of the court and peacefully depart!) Even
at the Free State's worst, during the system's catastrophic breakdown
into intestine warfare in the 1200s, the body count was fairly low;
as Friedman writes:

"During more than fifty years of what
the Icelanders themselves perceived as intolerably violent civil
war, leading to the collapse of the traditional system, the
average number of people killed or executed each year appears,
on a per capita basis, to be roughly equal to the current rate
of murder and nonnegligent manslaughter in the United States."

Obviously the level of violence during the three
centuries before the civil war must have been even lower.

Diamond is best known for his 1997 book Guns,
Germs, and Steel: The Fates of Human Societies, which argues
that history is determined primarily by geographical rather than
cultural factors; he applies a similar analysis here, maintaining
that the Icelanders' radically decentralized political system was
forced on them by Iceland's scanty supply of natural resources,
leaving them "too poor even to afford a government." (Oh,
for such poverty!) In short, the law of Iceland was not the product
of its inhabitants' own ideas and values, but was in effect selected
for them by the nature of their physical environment.

But didn't the Icelanders choose that environment
because they were hostile to centralized power back home? And doesn't
the structure of their legal system reflect that very hostility?
Diamond can hardly ignore these facts, but he minimizes their importance:

"Having emigrated to Iceland in order
to be independent of the growing power of the Norwegian king,
Icelanders wanted minimal government anyway, and that attitude
let them make a virtue of the necessity imposed by their poverty."

In other words, Icelandic cultural attitudes were
causally irrelevant to the outcome; although the system the Icelanders
ended up with was to their liking, they would have ended up with
much the same system whether they liked it or not.

Diamond's portrait of medieval Icelandic society
as crippled by extreme poverty is not borne out by the evidence.
In their supposedly hapless and half-starved condition, Icelanders
created a rich literary tradition of Eddas and Sagas, developed
a sophisticated legal code, and mounted voyages of exploration to
North America — activities that would seem to indicate a higher
degree of prosperity and leisure than Diamond suggests. Arguing
that Icelanders were in fact relatively affluent, Solvason points
to the steady improvement of economic conditions and increased production
of export goods over the course of the Free State period.

Ship ownership was far rarer in Iceland than one
might expect in an island community, particularly a "Viking"
one; Diamond surmises that this is because Iceland was poor in timber
(or quickly became so as settlers unsustainably exploited Iceland's
natural resources), so that "the original ships of the settlers
could not be replaced by new ships." He infers that Iceland,
being "almost entirely without ocean-going ships of its own,"
was left at the mercy of foreign navigators who "controlled
and exploited Iceland's trade." But as Solvason points out,
timber was regularly imported to Iceland for a variety of purposes,
and could have been used for shipbuilding if ships had been wanted;
Solvason concludes that Icelanders voluntarily chose to exploit
their comparative advantage in ranching (among Iceland's chief exports
were meat and wool) and leave shipbuilding to others, presumably
because they found this decision more profitable.

Diamond's geography-is-destiny approach to history
deserves our skepticism in any case. The world is full of bleak,
inhospitable, resource-poor regions whose inhabitants scratch out
a meager living; but how many such regions have left us a cultural
legacy comparable to medieval Iceland's? Diamond would do well to
heed philosopher R. G. Collingwood's dictum that history is ultimately
determined not by nature, but by what human beings make of nature.
By all evidence, Icelanders maintained their privatized political
system, not because they were driven by poverty and necessity to
do so (though Diamond apparently finds their system so uncongenial
that he can conceive no other reason), but quite simply because
it worked.

But if the Icelandic Free State was so successful,
why did it eventually collapse? Clearly, the explanation lies in
the growing centralization of wealth and power. As Diamond writes:

"Originally, soon after settlement, Iceland
had about 4,500 independent farms, but by the thirteenth century
80 percent of Iceland's farmland was owned by five families,
and all the other formerly independent farmers had become tenants."

These five families also managed to buy up most
of the chieftaincies, enabling them to dominate the courts and parliament.
The concentration of chieftaincies in fewer hands also meant an
end to the existence of competing chieftains within the same territory;
Iceland began to be fractured into regions, each operating as a
local monopoly or mini-state. During the years 1220-1262, the resulting
struggle for hegemony among these mini-states broke out into open
conflict, a crisis that was finally resolved only when the Icelanders,
exhausted by civil war, invited King Haakon of Norway to govern
them, thus bringing the Free State period to a close.

To Diamond, this final decision illustrates the
utter bankruptcy of the Icelandic system: "I cannot think of
another historical case of an independent country that became so
desperate that it turned itself over to another country." Perhaps
he should have tried harder; he might have remembered England in
1688, offering the crown to William of Orange after deposing the
Stuarts — or, harking farther back, the many small states who responded
to civil strife by calling in a Roman garrison, thus submitting
de facto to Roman authority. Moreover, the very desperation
of the move indicates how unaccustomed the Icelanders were to levels
of violence that had long been commonplace on the mainland. In any
case, the Icelanders presumably saw the Covenant of 1262-64, not
as a surrender of national independence, but simply as yet another
case of signing up with a new chieftain because their previous chieftains
had proven unsatisfactory. This new chieftain, the Norwegian king,
was farther away, and so perhaps less dangerous; certainly he was
wealthier than any Icelandic chieftain, and so (they imagined) less
tax-hungry. What they failed to recognize was the incentive implications
of switching from a competitive system to a monopolistic one — though
admittedly, their own system had lost much of its competitive character
already. (War is not a form of competition; it is what arises when
competition breaks down.)

The process of competitive chieftaincies turning
into monopolistic mini-states is obviously a move toward less
privatization, not more; and it was precisely when Iceland had become
less privatized and more like mainland Europe — a collection of
principalities vying for supremacy — that it collapsed into the
kind of large-scale warfare that had raged across the rest of Europe
for centuries. It seems rather unfair, then, to blame this catastrophe
on privatization. Still, why didn't Iceland's privatized system
of law prevent the increasing concentration of wealth and power
in the first place? Was this failure symptomatic of an inherent
flaw in the Icelandic system?

Typically, Diamond offers an environmental
explanation for the increasing concentration of wealth: Iceland's
harsh climate. "In cold years the poorer farms culled or lost
their livestock in the winter because of insufficient hay,"
and so were "forced to become debtors who were dependent on
others for survival." The cogency of this explanation is doubtful.
Wealthier farmers had more hay, but they presumably also had more
livestock; hence they most likely did not have more hay per head
of livestock. Since wealth was held predominantly in land and
livestock, not in currency, it's unclear why hard winters should
be expected to have a less severe impact on wealthy farmers than
on poor ones.

A more plausible explanation for the Free State's
decline points to the introduction of the tithe in 1096. Made possible
by Iceland's conversion to Christianity a century earlier, the tithe
— to pay church officials and maintain church buildings — was Iceland's
first real tax. (Previous "taxes" generally turn out on
closer inspection to be voluntary exchanges of fees for services.)
Assessed at 1% of the payer's property, it was also Iceland's first
graduated tax (earlier fees were one-size-fits-all), and
so took in much more revenue. Most importantly, the tithe lacked
a competitive element. Recall the non-territorial character of a
chieftain's jurisdiction: a chieftain's temptations to self-aggrandizement
were kept in check by the knowledge that if he acquired delusions
of grandeur or charged too high a price for his services, his clients
could abandon him for a rival. But the tithe was territorial;
all those who lived in the vicinity of a particular church building
had to pay for its upkeep, and were not at liberty to transfer
their support elsewhere. The catch is that the portion of tithe
revenue allocated to maintaining church buildings went not to the
official church hierarchy but to the wealthy private owners (usually
chieftains) of stadhir, "churchsteads," i.e., plots
of land on which churches had been built. The tithe was a property
tax; but chieftaincies, though marketable commodities, were exempt
— as were the churchsteads themselves, predominantly owned by chieftains.
(The parliament that enacted the tithe law was of course composed
entirely of chieftains.)

The tithe thus did more than just increase
the income of the chieftains; it decoupled that income from accountability.
Economic inequalities per se are not a serious threat to
liberty so long as they operate in a genuine market context, where
the way to gain and maintain wealth is to please one's customers;
before the introduction of the tithe, a chieftain who proved too
power-hungry would alienate his customers and so suffer financial
discipline. But chieftains who owned churchsteads now had a captive
market, and so were freed from all competitive restraints on their
accumulation of wealth and power. Through buying off or intimidating
less wealthy chieftains, the top families were able to gain control
of multiple chieftaincies. This gave them a lock on the parliament,
enabling them to pass still further taxes; it also decreased competition
among chieftains, allowing them to charge monopoly prices and drive
their clients into a serf-like state of debt and dependence.

The Icelandic system did fall through an inherent
flaw, then, but not the one Diamond imagines; the Free State failed,
not through having too much privatization, but through having too
little. The tithe, and particularly the portion allotted to churchstead
maintenance, represented a monopolistic, non-competitive element
in the system. The introduction of the tithe was in turn made possible
by yet another non-competitive element: the establishment of an
official state church which everyone was legally bound to support.
Finally, buying up chieftaincies would have availed little if there
had been free entry into the chieftaincy profession; instead, the
number of chieftains was set by law, and the creation of new chieftaincies
could be approved only by parliament — i.e., by the existing
chieftains, who were naturally less than eager to encourage
competitors. It is precisely those respects in which the Free State
was least privatized and decentralized that led to its downfall
— while its more privatized aspects delayed that downfall for three
centuries.

Diamond pities the medieval Icelanders. We
might do better to emulate them.

Further Reading

Bruce Benson. The
Enterprise of Law: Justice Without the State. Pacific
Research Institute, San Francisco, 1990.

Tom W. Bell. "Polycentric
Law." Humane Studies Review, Vol. 7, No. 1, 1991/92.

Jesse L. Byock. Feud
in the Icelandic Saga. University of California Press, Berkeley,
1982.

—–. Medieval
Iceland: Society, Sagas, and Power. University of California
Press, Berkeley, 1988.

—–. Viking
Age Iceland. Penguin, London, 2001.

David Friedman. "Private
Creation and Enforcement of Law: A Historical Case." Journal
of Legal Studies 8, 1979.

—–. The
Machinery of Freedom: Guide to a Radical Capitalism. Second
Edition. Open Court, La Salle, 1989. Chapter 44.

—–. "Viking Iceland: Anarchy that Worked,"
Liberty 2, no. 6 (July 1989), pp. 37-40.

Albert Loan. "Institutional
Bases of the Spontaneous Order: Surety and Assurance."
Humane Studies Review, Vol. 7, No. 2, 1992.

Roderick T. Long. "The
Decline and Fall of Private Law in Iceland." Formulations
1, no. 3 (Spring 1994).

William I. Miller. Bloodtaking
and Peacemaking: Feud, Law, and Society in Saga Iceland.
University of Chicago Press, Chicago, 1990.

Birgir T. Runolfsson Solvason. Ordered
Anarchy, State, and Rent-Seeking: The Icelandic Commonwealth, 930-1264.
Ph.D. Dissertation in Economics, George Mason University, 1991.

—–. "Ordered
Anarchy: Evolution of the Decentralized Legal Order in the Icelandic
Commonwealth," Icelandic Economic Papers 17 (1992).

—–. 1993. "Institutional Evolution in the
Icelandic Commonwealth." Constitutional Political Economy
4, no. 1, pp. 97-125.

June
6, 2002

Roderick
T. Long [send
him mail] is Assistant Professor of Philosophy at Auburn
University, President of the Alabama
Philosophical Society, Editor of the Libertarian Nation
Foundation periodical Formulations,
and an Adjunct Scholar of the Ludwig
von Mises Institute.

Probably no intellectual has suffered more distortion and abuse than Spencer. He is continually condemned for things he never said — indeed, he is taken to task for things he explicitly denied. The target of academic criticism is usually the mythical Spencer rather than the real Spencer; and although some critics may derive immense satisfaction from their devastating refutations of a Spencer who never existed, these treatments hinder rather than advance the cause of knowledge.

~ George H. Smith (Atheism, Ayn Rand, and Other Heresies, p. 293)

I don’t know what it is about Herbert Spencer that brings out the worst in cultural historians; but the tendency to recycle the same bizarre, age-old smears against him, without ever checking the facts, remains firmly entrenched. Spencer, it seems, is a ready-made scapegoat, attacked because others have made it fashionable to attack him; and few bother to read what the man actually wrote, because “everybody knows” that his ideas, whatever they were, were inhuman and worthless.

To those, like myself, who admire Spencer as a profound thinker and a hero of liberty, the shameful treatment he regularly receives at the hands of careless and credulous scholars is especially infuriating. Indeed, lately I’ve found myself turning into something of a one-man Herbert Spencer Anti-Defamation League. (See my recent skirmishes here, here, and here.) Well, so be it; as long as scholars continue to misrepresent Herbert Spencer, I’ll continue to cry foul.

The latest offender is Susan Jacoby’s Freethinkers: A History of American Secularism (New York: Metropolitan, 2004). Since Spencer’s defense of theological agnosticism in his book First Principles (1862) was a significant influence on the American freethought movement, Jacoby devotes several pages to a discussion of his ideas.

The most popular stereotype of Spencer has always been that he opposed aid to the poor and needy, on the grounds that such assistance interfered with the process whereby natural selection weeds out the unfit. Jacoby duly repeats the stereotype. Unfortunately for Jacoby — and her many, many predecessors in this calumny — Spencer never held any such view. That the stereotype is entirely false is clear to anyone who takes the trouble to read Spencer’s arguments rather than seizing on out-of-context fragments; but seizing on out-of-context fragments is exactly what Jacoby does.

Like all Spencer-bashers before her, Jacoby quotes with relish the infamous passage from Social Statics III. 28. 4, where Spencer says: “If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die.” And like all Spencer-bashers before her, Jacoby conveniently omits the first sentence of the immediately following paragraph: “Of course, in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated.” This omission creates the impression that Spencer thinks it a good idea to let the unfit die; but on the contrary, he goes on to argue that any “drawbacks” arising from aid to the unfit are outweighed by “the benefits otherwise conferred.”

The upshot of the entire section, then, is that while the operation of natural selection is beneficial, its mitigation by human benevolence is even more beneficial. But who would guess this from Jacoby’s highly selective excerpting? By quoting a snippet out of context, she has managed to make Spencer’s view appear to be the opposite of what it in fact was.

I don’t mean to suggest that Jacoby is being deliberately dishonest in her misrepresentation of Spencer’s position. I very much doubt that she read the whole section and then chose to quote just the misleading snippet while suppressing Spencer’s actual conclusions. I think it far more likely that Jacoby never read the section at all. I would be willing to bet that she found the snippet ready-made, quoted by some other author who perhaps also had never bothered to read the passage in its original context. This is how smears get perpetuated.

It must likewise be presumed that neither Jacoby nor the sources she relied on ever took a careful look at Principles of Ethics V. 1, where Spencer explains that “the highest form of life, individual and social, is not achievable under a reign of justice only; but … there must be joined with it a reign of beneficence.” A society cannot regard itself as advanced, Spencer explains, “until, beyond avoidance of direct and indirect injuries to others, there are spontaneous efforts to further the welfare of others.” Spencer then follows up this declaration with eighteen chapters on the duties of beneficence. But he might as well have filled those eighteen chapters up with blank pages or chicken-scratchings for all the effect they have had on the prejudices of his interpreters. Spencer, as Jacoby blandly notes, is “virtually unread today.” (p. 139.)

Spencer the Reactionary?

Jacoby continues the misrepresentation by asserting that Spencer’s American followers were “unlike Spencer” in favouring “social action to ameliorate the harshest aspects of industrial capitalism” — giving Andrew Carnegie’s establishing libraries as an example. (p. 141.) She says this of the Spencer who not only (like Carnegie) favoured private philanthropy but also (unlike Carnegie) supported labour unions as a check on the “harsh and cruel conduct” of employers, and expressed the hope that workers’ cooperatives would eventually displace the “slavery” of the wage system altogether. (See Principles of Sociology VIII. 20-21.) It is this system of ideas that she calls “a philosophy well suited to … the more rapacious business interests of the Gilded Age.” (p. 139.)

Jacoby admits it is “difficult to understand why [Spencer] was taken so seriously by a great many Americans not identified with extreme conservatism.” (p. 141.) But she never pauses to wonder whether it is her own identification of Spencer as an “extreme conservative” that is causing the difficulty.

Admittedly I don’t know exactly what Jacoby takes to be involved in “extreme conservatism,” but it strikes me as a rather awkward label to apply to a thinker who, in addition to his opposition to the wage system, maintained as early as 1851 that the “law of equal freedom manifestly applies to the whole race — female as well as male,” so that the “rights deducible from that law must appertain equally to both sexes” (Social Statics II. 16. 1); who insisted that “by devoting a portion of its revenues or a part of the nation’s property to the propagation of Christianity or any other creed, a government necessarily commits a wrong” (Social Statics III. 24. 1); who, at least in his early writings, denied the legitimacy of private ownership in land, proclaiming that the public at large should be “free to resume as much of the earth’s surface as they think fit” (Social Statics II. 9); who dismissed all arguments for censorship as equivalent to “papal assumption,” i.e., a claim of governmental infallibility (Principles of Ethics IV. 18); who condemned Western imperialism for its “very repulsive likeness to the doings of buccaneers” (Social Statics III. 27) and for its exploitation of “the poor, starved, overburdened people” to benefit “rich owners of colonial property” (The Proper Sphere of Government, 6); and who denied having any “patriotic feeling,” remarking of his country’s troops in Afghanistan that “[w]hen men hire themselves out to shoot other men to order, asking nothing about the justice of their cause, I don’t care if they are shot themselves” (Facts and Comments, ch. 20). If all this is “extreme conservatism,” it is at least of an odd sort.

Perhaps the charge of “extreme conservatism” refers to Spencer’s hostility to government regulation. Certainly his antistatism was so radical as to border on anarchism — which explains why so many American anarchists cheerfully adopted his “law of equal freedom” as their credo. Spencer regarded the state as merely “a particular phase of human development,” and suggested that it is “a mistake to assume that government must necessarily last for ever. … As amongst the Bushmen we find a state antecedent to government; so may there be one in which it shall have become extinct.” (Social Statics Intro. 1. 4.) If this makes him a conservative, I suppose it makes Karl Marx one also.

Jacoby expresses astonishment that Spencer carries his antipathy toward government services so far as to criticise “basic government services like the post office.” (pp. 140-41.) As the author of a chapter on the connections between “Anticlericalism, Abolitionism, and Feminism” in 19th-century America, however, Jacoby might be expected to have learned in the course of her research that a private mail service, started by anticlerical-abolitionist-feminist Lysander Spooner, was offering mail service at cheaper rates than the government until it was forcibly shut down. Alas, Jacoby seems to be one of those people who think that anyone who calls for the non-violent, non-governmental provision of a service must be opposed to the existence of that service.

She opines, for example, that America’s “expanding support for public education, which Spencer deplored, provided far more opportunities for the ‘fittest’ of the poor to succeed.” (p. 140.) This is certainly a case of viewing the history of government schooling in America through rose-tinted glasses. As Murray Rothbard reminds us, the explicitly avowed purpose of the U.S. public education system was to impose docility and social conformity on the working class, particularly on Jacksonian democrats and Catholic immigrants — exactly the sort of abuse that Spencer was worried about. Jacoby does mention “anti-Semitic, anti-Catholic nativists” (p. 230) — but only to link them, incredibly and offensively, to Spencer.

Jacoby even goes so far as to compare Spencer to Ebenezer Scrooge. (p. 140.) There is a certain irony in this: after all, it is Scrooge who heartlessly supports the inefficient and brutal Poor Law while disparaging private charity. Spencer’s position, of course, was exactly the reverse.

Spencer the Nitwit?

Spencer’s attempts to develop a unified theory of cosmological, biological, and social evolution have often been hailed as an anticipation of modern systems theory, and his views on the natural tendency of systems to develop from homogeneity to heterogeneity seem to find confirmation in the work of such contemporary physicists as David Layzer and Ilya Prigogine. Nevertheless, Jacoby makes fun of Spencer’s efforts, dismisses his work as a “muddling of science with unscientific ideology,” and quotes with apparent approval Richard Hofstadter’s insulting characterisation of Spencer as “the metaphysician of the homemade intellectual and the prophet of the cracker-barrel agnostic.” (p. 138.)

Did Jacoby form this opinion of Spencer’s system by actually reading his defense of that system in the ten-volume Synthetic Philosophy? I may be forgiven for doubting such an etiology; I rather suspect she is instead taking on credit some “scholarly consensus” on the matter — among historians most of whom have likewise never bothered to read much Spencer.

The only support Jacoby offers for her harsh verdict on Spencer’s system is a quotation from Spencer’s account (as quoted by someone else, of course; it’s not like she came across it by reading Spencer) of how watching waves on the surface of a pool led him to develop some of his theories; she sneeringly calls this passage an “example of Spencer’s logic (if it can be called that).” (pp. 139-40.) Of course the passage is not meant to be an argument at all; it simply describes how watching the undulations on the water led him to think of “the undulations of the ether” and “the rises and falls in the prices of money, shares, and commodities.” Spencer was no more offering the sight of waves on a pool as evidence for his unified systems theory than Newton was offering the fall of the apple as evidence for the theorems in the Principia, or than Kekul was offering the tail-swallowing serpent in his dream as evidence of the molecular structure of benzene. If Jacoby wanted to analyse an actual “example of Spencer’s logic,” she might have looked at one of the passages where he is arguing for his views rather than merely recounting the circumstances under which he formed them. But there is no evidence that she has ever perused any of Spencer’s arguments at all.

In addition, Jacoby offers us a series of comparisons between Spencer and Darwin, all intended to cast discredit on the former. But her attempt is vitiated by her lack of information on the topic in question.

• She says that Spencer “applied Darwin’s principle of natural selection to the social as well as to the natural world — a mistake Darwin never made.” (p. 138.) This is a remarkable statement, in light of the fact that Darwin devotes many pages of The Descent of Man to the sociological implications of natural selection. (But perhaps all she means is that Darwin never advised us to let the unfit die off. Well, neither did Spencer.)

• She notes that Darwin, allegedly unlike Spencer, was “no believer in the inevitability of progress.” (p. 142.) But again, neither was Spencer; on the contrary, he believed that human civilisation was headed for a long period of decline — which is why he penned so many articles with gloomy titles like “Re-barbarization” and “The Coming Slavery.”
• She tells us that “Darwin was not reluctant to reevaluate his ideas” while “Spencer, by contrast, tied up everything … in a grand metaphysical scheme that did not allow for new and contrary pieces of evidence.” (p. 143.) Had she read Spencer’s actual works, she would know that Spencer was constantly reassessing, revising, and recanting earlier opinions on the basis of new evidence or new reasoning or both. (Has she simply assumed that the dreadful Herbert Spencer must have been impervious to changes of mind? Or has she taken some author’s word for it without checking?)
• Finally, she trumpets Darwin’s superiority over the horrible Spencer on the grounds that for Darwin “natural selection becomes subordinate to environmental factors — and man’s own moral evolution — as soon as humans enter into a state of civilization,” so that we develop an “instinct of sympathy” that forbids us to “neglect the weak and helpless.” (p. 142.) But this is precisely Spencer’s view also. (Indeed, Darwin probably got it from Spencer, as he got so much else.) In an essay on “Evolutionary Ethics” (in Essays Moral, Political, and Speculative), Spencer painstakingly explains that according to his theory “the survival of the fittest is often not the survival of the best,” that “the ethical process is part of the process of evolution,” and that “the struggle for life needs to be qualified when the gregarious state is entered.” “So far from being, as some have alleged, an advocacy of the claims of the strong against the weak,” Spencer insists, his system “is much more an insistence that the weak shall be guarded against the strong.” And at Principles of Ethics I. 14 he even hopes that “unceasing social discipline will so mold human nature” that in due course the “likeness between the feelings of the sympathizer and those of the sympathized with” will come “near to identity,” with the result that “ministration to others’ happiness will become a daily need” and “sympathetic pleasures will be spontaneously pursued to the fullest extent advantageous to each and all.”

This is the man Jacoby compares to Ebenezer Scrooge.

Susan Jacoby’s book Freethinkers is a celebration of various figures who thought and inquired for themselves rather than showing a servile reliance on some established consensus. When it comes to assessing Herbert Spencer’s intellectual legacy, however, it seems that she herself has not thought sufficiently freely — and the result is that a brilliant and humane mind has been unfairly maligned yet again.

One of Spencer’s admirers once expressed the opinion that Spencer’s memory would not be done full justice until the 25th century. Maybe he was right; but can’t we work to make it happen just a little sooner?

Roderick T. Long [send him mail] is Associate Professor of Philosophy at Auburn University; author of Reason and Value: Aristotle versus Rand; Editor of the Libertarian Nation Foundation periodical Formulations; and an Adjunct Scholar of the Ludwig von Mises Institute. He received his Ph.D. from Cornell in 1992, and maintains the website Praxeology.net, as well as the web journal In a Blog’s Stead.