• Society Without a State

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    Murray Rothbard
    delivered this talk 32 years ago at the American Society for Political
    and Legal Philosophy (ASPLP), Washington, DC: December 28, 1974.
    It was first published in The
    Libertarian Forum
    , volume 7.1, January 1975, available in
    PDF.

    In attempting
    to outline how a “society without a state” – that is, an
    anarchist society – might function successfully, I would
    first like to defuse two common but mistaken criticisms of this
    approach. First, is the argument that in providing for such defense
    or protection services as courts, police, or even law itself,
    I am simply smuggling the state back into society in another form,
    and that therefore the system I am both analyzing and advocating
    is not “really” anarchism.

    This sort
    of criticism can only involve us in an endless and arid dispute
    over semantics. Let me say from the beginning that I define
    the state as that institution which possesses one or both (almost
    always both) of the following properties: (1) it acquires its
    income by the physical coercion known as “taxation”; and (2)
    it asserts and usually obtains a coerced monopoly of the provision
    of defense service (police and courts) over a given territorial
    area. An institution not possessing either of these properties
    is not and cannot be, in accordance with my definition, a state.

    On the
    other hand, I define anarchist society as one where there is
    no legal possibility for coercive aggression against the person
    or property of an individual. Anarchists oppose the state because
    it has its very being in such aggression, namely, the expropriation
    of private property through taxation, the coercive exclusion
    of other providers of defense service from its territory, and
    all of the other depredations and coercions that are built upon
    these twin foci of invasions of individual rights.

    Nor is our
    definition of the state arbitrary, for these two characteristics
    have been possessed by what is generally acknowledged to be states
    throughout recorded history. The state, by its use of physical coercion,
    has arrogated to itself a compulsory monopoly of defense services
    over its territorial jurisdiction. But it is certainly conceptually
    possible for such services to be supplied by private, non-state
    institutions, and indeed such services have historically been supplied
    by other organizations than the state. To be opposed to the state
    is then not necessarily to be opposed to services that have often
    been linked with it; to be opposed to the state does not necessarily
    imply that we must be opposed to police protection, courts, arbitration,
    the minting of money, postal service, or roads and highways. Some
    anarchists have indeed been opposed to police and to all physical
    coercion in defense of person and property, but this is
    not inherent in and is fundamentally irrelevant to the anarchist
    position, which is precisely marked by opposition to all physical
    coercion invasive of, or aggressing against, person and property.

    The crucial
    role of taxation may be seen in the fact that the state is the
    only institution or organization in society which regularly and
    systematically acquires its income through the use of physical
    coercion. All other individuals or organizations acquire their
    income voluntarily, either (1) through the voluntary sale of goods
    and services to consumers on the market, or (2) through voluntary
    gifts or donations by members or other donors. If I cease or refrain
    from purchasing Wheaties on the market, the Wheaties producers
    do not come after me with a gun or the threat of imprisonment
    to force me to purchase; if I fail to join the American Philosophical
    Association, the association may not force me to join or prevent
    me from giving up my membership. Only the state can do so; only
    the state can confiscate my property or put me in jail if I do
    not pay its tax tribute. Therefore, only the state regularly exists
    and has its very being by means of coercive depredations on private
    property.

    Neither is
    it legitimate to challenge this sort of analysis by claiming that
    in some other sense, the purchase of Wheaties or membership in the
    APA is in some way “coercive.” Anyone who is still unhappy with
    this use of the term “coercion” can simply eliminate the word from
    this discussion and substitute for it “physical violence or the
    threat thereof,” with the only loss being in literary style rather
    than in the substance of the argument. What anarchism proposes to
    do, then, is to abolish the state, that is, to abolish the regularized
    institution of aggressive coercion.

    It need hardly
    be added that the state habitually builds upon its coercive source
    of income by adding a host of other aggressions upon society,
    ranging from economic controls to the prohibition of pornography
    to the compelling of religious observance to the mass murder of
    civilians in organized warfare. In short, the state, in the worlds
    of Albert Jay Nock, “claims and exercises a monopoly of crime”
    over its territorial area.

    The second
    criticism I would like to defuse before beginning the main body
    of the paper is the common charge that anarchists “assume that
    all people are good” and that without the state no crime would
    be committed. In short, that anarchism assumes that with the abolition
    of the state a New Anarchist Man will emerge, cooperative, humane,
    and benevolent, so that no problem of crime will then plague the
    society. I confess that I do not understand the basis for this
    charge. Whatever other schools of anarchism profess – and
    I do not believe that they are open to the charge – I certainly
    do not adopt this view. I assume with most observers that mankind
    is a mixture of good and evil, of cooperative and criminal tendencies.

    In my view,
    the anarchist society is one which maximizes the tendencies for
    the good and the cooperative, while it minimizes both the opportunity
    and the moral legitimacy of the evil and the criminal. If the
    anarchist view is correct and the state is indeed the great legalized
    and socially legitimated channel for all manner of antisocial
    crime – theft, oppression, mass murder – on a massive
    scale, then surely the abolition of such an engine of crime can
    do nothing but favor the good in man and discourage the bad.

    A further
    point: in a profound sense, no social system, whether
    anarchist or statist, can work at all unless most people are “good”
    in the sense that they are not all hell-bent upon assaulting and
    robbing their neighbors. If everyone were so disposed, no amount
    of protection, whether state or private, could succeed in staving
    off chaos. Furthermore, the more that people are disposed to be
    peaceful and not aggress against their neighbors, the more successfully
    any social system will work, and the fewer resources
    will need to be devoted to police protection. The anarchist view
    holds that, given the “nature of man,” given the degree of goodness
    or badness at any point in time, anarchism will maximize the opportunities
    for the good and minimize the channels for the bad. The rest depends
    on the values held by the individual members of society. The only
    further point that needs to be made is that by eliminating the
    living example and the social legitimacy of the massive legalized
    crime of the state, anarchism will to a large extent promote peaceful
    values in the minds of the public.

    We cannot
    of course deal here with the numerous arguments in favor of anarchism
    or against the state, moral, political, and economic. Nor can
    we take up the various goods and services now provided by the
    state and show how private individuals and groups will be able
    to supply them far more efficiently on the free market. Here we
    can only deal with perhaps the most difficult area, the area where
    it is almost universally assumed that the state must exist and
    act, even if it is only a “necessary evil” instead of a positive
    good: the vital realm of defense or protection of person and property
    against aggression. Surely, it is universally asserted, the state
    is at least vitally necessary to provide police protection, the
    judicial resolution of disputes and enforcement of contracts,
    and the creation of the law itself that is to be enforced. My
    contention is that all of these admittedly necessary services
    of protection can be satisfactorily and efficiently supplied by
    private persons and institutions on the free market.

    One important
    caveat before we begin the body of this paper: new proposals such
    as anarchism are almost always gauged against the implicit assumption
    that the present, or statist system works to perfection. Any lacunae
    or difficulties with the picture of the anarchist society are considered
    net liabilities, and enough to dismiss anarchism out of hand. It
    is, in short, implicitly assumed that the state is doing its self-assumed
    job of protecting person and property to perfection. We cannot here
    go into the reasons why the state is bound to suffer inherently
    from grave flaws and inefficiencies in such a task. All we need
    do now is to point to the black and unprecedented record of the
    state through history: no combination of private marauders can possibly
    begin to match the state’s unremitting record of theft, confiscation,
    oppression, and mass murder. No collection of Mafia or private bank
    robbers can begin to compare with all the Hiroshimas, Dresdens,
    and Lidices and their analogues through the history of mankind.

    This point
    can be made more philosophically: it is illegitimate to compare
    the merits of anarchism and statism by starting with the present
    system as the implicit given and then critically examining only
    the anarchist alternative. What we must do is to begin at the
    zero point and then critically examine both suggested
    alternatives. Suppose, for example, that we were all suddenly
    dropped down on the earth de novo and that we were all
    then confronted with the question of what societal arrangements
    to adopt. And suppose then that someone suggested: “We are all
    bound to suffer from those of us who wish to aggress against their
    fellow men. Let us then solve this problem of crime by handing
    all of our weapons to the Jones family, over there, by giving
    all of our ultimate power to settle disputes to that family. In
    that way, with their monopoly of coercion and of ultimate decision
    making, the Jones family will be able to protect each of us from
    each other.” I submit that this proposal would get very short
    shrift, except perhaps from the Jones family themselves. And yet
    this is precisely the common argument for the existence of the
    state. When we start from zero point, as in the case of the Jones
    family, the question of “who will guard the guardians?” becomes
    not simply an abiding lacuna in the theory of the state but an
    overwhelming barrier to its existence.

    A final caveat:
    the anarchist is always at a disadvantage in attempting to forecast
    the shape of the future anarchist society. For it is impossible
    for observers to predict voluntary social arrangements, including
    the provision of goods and services, on the free market. Suppose,
    for example, that this were the year 1874 and that someone predicted
    that eventually there would be a radio-manufacturing industry. To
    be able to make such a forecast successfully, does he have to be
    challenged to state immediately how many radio manufacturers there
    would be a century hence, how big they would be, where they would
    be located, what technology and marketing techniques they would
    use, and so on? Obviously, such a challenge would make no sense,
    and in a profound sense the same is true of those who demand a precise
    portrayal of the pattern of protection activities on the market.
    Anarchism advocates the dissolution of the state into social and
    market arrangements, and these arrangements are far more flexible
    and less predictable than political institutions. The most that
    we can do, then, is to offer broad guidelines and perspectives on
    the shape of a projected anarchist society.

    One important
    point to make here is that the advance of modern technology makes
    anarchistic arrangements increasingly feasible. Take, for example,
    the case of lighthouses, where it is often charged that it is
    unfeasible for private lighthouse operators to row out to each
    ship to charge it for use of the light. Apart from the fact that
    this argument ignores the successful existence of private lighthouses
    in earlier days, as in England in the eighteenth century, another
    vital consideration is that modern electronic technology makes
    charging each ship for the light far more feasible. Thus, the
    ship would have to have paid for an electronically controlled
    beam which could then be automatically turned on for those ships
    which had paid for the service.

    Let us turn
    now to the problem of how disputes – in particular disputes
    over alleged violations of person and property – would be
    resolved in an anarchist society. First, it should be noted that
    all disputes involve two parties: the plaintiff, the alleged victim
    of the crime or tort and the defendant, the alleged aggressor.
    In many cases of broken contract, of course, each of the two parties
    alleging that the other is the culprit is at the same time a plaintiff
    and a defendant.

    An important
    point to remember is that any society, be it statist or
    anarchist, has to have some way of resolving disputes that
    will gain a majority consensus in society. There would be no need
    for courts or arbitrators if everyone were omniscient and knew instantaneously
    which persons were guilty of any given crime or violation
    of contract. Since none of us is omniscient, there has to be some
    method of deciding who is the criminal or lawbreaker which will
    gain legitimacy; in short, whose decision will be accepted by the
    great majority of the public.

    In the first
    place, a dispute may be resolved voluntarily between the two parties
    themselves, either unaided or with the help of a third mediator.
    This poses no problem, and will automatically be accepted by society
    at large. It is so accepted even now, much less in a society imbued
    with the anarchistic values of peaceful cooperation and agreement.
    Secondly and similarly, the two parties, unable to reach agreement,
    may decide to submit voluntarily to the decision of an arbitrator.
    This agreement may arise either after a dispute has arisen, or
    be provided for in advance in the original contract. Again, there
    is no problem in such an arrangement gaining legitimacy. Even
    in the present statist era, the notorious inefficiency and coercive
    and cumbersome procedures of the politically run government courts
    has led increasing numbers of citizens to turn to voluntary and
    expert arbitration for a speedy and harmonious settling of disputes.

    Thus, William
    C. Wooldridge has written that

    Arbitration
    has grown to proportions that make the courts a secondary recourse
    in many areas and completely superfluous in others. The ancient
    fear of the courts that arbitration would “oust” them of their
    jurisdiction has been fulfilled with a vengeance the common-law
    judges probably never anticipated. Insurance companies adjust
    over fifty thousand claims a year among themselves through arbitration,
    and the American Arbitration Association (AAA), with headquarters
    in New York and twenty-five regional offices across the country,
    last year conducted over twenty-two thousand arbitrations. Its
    twenty-three thousand associates available to serve as arbitrators
    may outnumber the total number of judicial personnel …
    in the United States…. Add to this the unknown number
    of individuals who arbitrate disputes within particular industries
    or in particular localities, without formal AAA affiliation,
    and the quantitatively secondary role of official courts begins
    to be apparent.[1]

    Wooldridge
    adds the important point that, in addition to the speed of arbitration
    procedures vis-à-vis the courts, the arbitrators can proceed
    as experts in disregard of the official government law; in a profound
    sense, then, they serve to create a voluntary body of private law.
    “In other words,” states Wooldridge, “the system of extralegal,
    voluntary courts has progressed hand in hand with a body of private
    law; the rules of the state are circumvented by the same process
    that circumvents the forums established for the settlement of disputes
    over those rules…. In short, a private agreement between two
    people, a bilateral ‘law,’ has supplanted the official law. The
    writ of the sovereign has ceased to run, and for it is substituted
    a rule tacitly or explicitly agreed to by the parties." Wooldridge
    concludes that “if an arbitrator can choose to ignore a penal damage
    rule or the status of limitations applicable to the claim before
    him (and it is generally conceded that he has that power), arbitration
    can be viewed as a practically revolutionary instrument for self-liberation
    from the law….”[2]

    It may be
    objected that arbitration only works successfully because the
    courts enforce the award of the arbitrator. Wooldridge points
    out, however, that arbitration was unenforceable in the American
    courts before 1920, but that this did not prevent voluntary arbitration
    from being successful and expanding in the United States and in
    England. He points, furthermore, to the successful operations
    of merchant courts since the Middle Ages, those courts which successfully
    developed the entire body of the law merchant. None of those courts
    possessed the power of enforcement. He might have added the private
    courts of shippers which developed the body of admiralty law in
    a similar way.

    How then did
    these private, “anarchistic,” and voluntary courts ensure the acceptance
    of their decisions? By the method of social ostracism, and by the
    refusal to deal any further with the offending merchant. This method
    of voluntary “enforcement,” indeed provided highly successful. Wooldridge
    writes that “the merchants’ courts were voluntary, and if a man
    ignored their judgment, he could not be sent to jail…. Nevertheless,
    it is apparent that … [their] decisions were generally respected
    even by the losers; otherwise people would never have used them
    in the first place…. Merchants made their courts work simply
    by agreeing to abide by the results. The merchant who broke the
    understanding would not be sent to jail, to be sure, but neither
    would he long continue to be a merchant, for the compliance exacted
    by his fellows … provide if anything more effective than physical
    coercion.”[3] Nor did this voluntary
    method fail to work in modern times. Wooldridge writes that it was
    precisely in the years before 1920, when arbitration awards could
    not be enforced in the courts,

    that arbitration
    caught on and developed a following in the American mercantile
    community. Its popularity, gained at a time when abiding by
    an agreement to arbitrate had to be as voluntary as the agreement
    itself, casts doubt on whether legal coercion was an essential
    adjunct to the settlement of most disputes. Cases of refusal
    to abide by an arbitrator’s award were rare; one founder of
    the American Arbitration Association could not recall a single
    example. Like their medieval forerunners, merchants in the Americas
    did not have to rely on any sanctions other than those they
    could collectively impose on each other. One who refused to
    pay up might find access to his association’s tribunal cut off
    in the future, or his name released to the membership of his
    trade association; these penalties were far more fearsome than
    the cost of the award with which he disagreed. Voluntary and
    private adjudications were voluntarily and privately adhered
    to, if not out of honor, out of the self-interest of businessmen
    who knew that the arbitral mode of dispute settlement would
    cease to be available to them very quickly if they ignored an
    award.[4]

    It should
    also be pointed out that modern technology makes even more feasible
    the collection and dissemination of information about people’s
    credit ratings and records of keeping or violating their contracts
    or arbitration agreements. Presumably, an anarchist society would
    see the expansion of this sort of dissemination of data and thereby
    facilitate the ostracism or boycotting of contract and arbitration
    violators.

    How would
    arbitrators be selected in an anarchist society? In the same way
    as they are chosen now, and as they were chosen in the days of
    strictly voluntary arbitration: the arbitrators with the best
    reputation for efficiency and probity would be chosen by the various
    parties on the market. As in other processes of the market, the
    arbitrators with the best record in settling disputes will come
    to gain an increasing amount of business, and those with poor
    records will no longer enjoy clients and will have to shift to
    another line of endeavor. Here it must be emphasized that parties
    in dispute will seek out those arbitrators with the best reputation
    for both expertise and impartiality and that inefficient or biased
    arbitrators will rapidly have to find another occupation.

    Thus, the Tannehills
    emphasize:

    the advocates
    of government see initiated force (the legal force of government)
    as the only solution to social disputes. According to them,
    if everyone in society were not forced to use the same court
    system … disputes would be insoluble. Apparently it doesn’t
    occur to them that disputing parties are capable of freely choosing
    their own arbiters…. they have not realized that disputants
    would, in fact, be far better off if they could choose among
    competing arbitration agencies so that they could reap the benefits
    of competition and specialization. It should be obvious that
    a court system which has a monopoly guaranteed by the force
    of statutory law will not give as good quality service as will
    free-market arbitration agencies which must compete for their
    customers….

    Perhaps
    the least tenable argument for government arbitration of disputes
    is the one which holds that governmental judges are more impartial
    because they operate outside the market and so have no vested
    interests…. Owning political allegiance to government
    is certainly no guarantee of impartiality! A governmental judge
    is always impelled to be partial – in favor of the government,
    from whom he gets his pay and his power! On the other hand,
    an arbiter who sells his services in a free market knows that
    he must be as scrupulously honest, fair, and impartial as possible
    or no pair of disputants will buy his services to arbitrate
    their dispute. A free-market arbiter depends for his livelihood
    on his skill and fairness at settling disputes. A governmental
    judge depends on political pull.[5]

    If desired,
    furthermore, the contracting parties could provide in advance
    for a series of arbitrators:

    It would
    be more economical and in most cases quite sufficient to have
    only one arbitration agency to hear the case. But if the parties
    felt that a further appeal might be necessary and were willing
    to risk the extra expense, they could provide for a succession
    of two or even more arbitration agencies. The names of these
    agencies would be written into the contract in order from the
    “first court of appeal” to the “last court of appeal.” It would
    be neither necessary nor desirable to have one single, final
    court of appeal for every person in the society, as we have
    today in the United States Supreme Court.[6]

    Arbitration,
    then, poses little difficulty for a portrayal of the free society.
    But what of torts or crimes of aggression where there has been no
    contract? Or suppose that the breaker of a contract defies the arbitration
    award? Is ostracism enough? In short, how can courts develop in
    the free-market anarchist society which will have the power to enforce
    judgments against criminals or contract breakers?

    In the wide
    sense, defense service consists of guards or police who use force
    in defending person and property against attack, and judges or
    courts whose role is to use socially accepted procedures to determine
    who the criminals or tortfeasors are, as well as to enforce
    judicial awards, such as damages or the keeping of contracts.
    On the free market, many scenarios are possible on the relationship
    between the private courts and the police; they may be “vertically
    integrated,” for example, or their services may be supplied by
    separate firms. Furthermore, it seems likely that police service
    will be supplied by insurance companies who will provide crime
    insurance to their clients. In that case, insurance companies
    will pay off the victims of crime or the breaking of contracts
    or arbitration awards and then pursue the aggressors in court
    to recoup their losses. There is a natural market connection between
    insurance companies and defense service, since they need pay out
    less benefits in proportion as they are able to keep down the
    rate of crime.

    Courts might
    either charge fees for their services, with the losers of cases
    obliged to pay court costs, or else they may subsist on monthly
    or yearly premiums by their clients, who may be either individuals
    or the police or insurance agencies. Suppose, for example, that
    Smith is an aggrieved party, either because he has been assaulted
    or robbed, or because an arbitration award in his favor has not
    been honored. Smith believes that Jones is the party guilty of
    the crime. Smith then goes to a court, Court A, of which he is
    a client, and brings charges against Jones as a defendant. In
    my view, the hallmark of an anarchist society is one where no
    man may legally compel someone who is not a convicted criminal
    to do anything, since that would be aggression against an innocent
    man’s person or property. Therefore, Court A can only invite rather
    than subpoena Jones to attend his trial. Of course, if Jones refused
    to appear or send a representative, his side of the case will
    not be heard. The trial of Jones proceeds. Suppose that Court
    A finds Jones innocent. In my view, part of the generally accepted
    law code of the anarchist society (on which see further below)
    is that this must end the matter unless Smith can prove charges
    of gross incompetence or bias on the part of the court.

    Suppose, next,
    that Court A finds Jones guilty. Jones might accept the verdict,
    because he too is a client of the same court, because he knows he
    is guilty, or for some other reason. In that case, Court A proceeds
    to exercise judgment against Jones. Neither of these instances poses
    very difficult problems for our picture of the anarchist society.
    But suppose, instead, that Jones contests the decision; he then
    goes to his court, Court B, and the case is retried there. Suppose
    that Court B, too, finds Jones guilty. Again, it seems to me that
    the accepted law code of the anarchist society will assert that
    this ends the matter; both parties have had their say in courts
    which each has selected, and the decision for guilt is unanimous.

    Suppose,
    however, the most difficult case: that Court B finds Jones innocent.
    The two courts, each subscribed to by one of the two parties,
    have split their verdicts. In that case, the two courts will submit
    the case to an appeals court, or arbitrator, which the two courts
    agree upon. There seems to be no real difficulty about the concept
    of an appeals court. As in the case of arbitration contracts,
    it seems very likely that the various private courts in the society
    will have prior agreements to submit their disputes to a particular
    appeals court. How will the appeals judges be chosen? Again, as
    in the case of arbitrators or of the first judges on the free
    market, they will be chosen for their expertise and their reputation
    for efficiency, honesty, and integrity. Obviously, appeals judges
    who are inefficient or biased will scarcely be chosen by courts
    who will have a dispute. The point here is that there is no need
    for a legally established or institutionalized single, monopoly
    appeals court system, as states now provide. There is no reason
    why there cannot arise a multitude of efficient and honest appeals
    judges who will be selected by the disputant courts, just as there
    are numerous private arbitrators on the market today. The appeals
    court renders its decision, and the courts proceed to enforce
    it if, in our example, Jones is considered guilty – unless,
    of course, Jones can prove bias in some other court proceedings.

    No society
    can have unlimited judicial appeals, for in that case there would
    be no point to having judges or courts at all. Therefore, every
    society, whether statist or anarchist, will have to have some
    socially accepted cutoff point for trials and appeals. My suggestion
    is the rule that the agreement of any two courts, be
    decisive. “Two” is not an arbitrary figure, for it reflects the
    fact that there are two parties, the plaintiff and the defendant,
    to any alleged crime or contract dispute.

    If the courts
    are to be empowered to enforce decision against guilty parties,
    does this not bring back the state in another form and thereby negate
    anarchism? No, for at the beginning of this paper I explicitly defined
    anarchism in such a way as not to rule out the use of defensive
    force – force in defense of person and property – by privately
    supported agencies. In the same way, it is not bringing back the
    state to allow persons to use force to defend themselves against
    aggression, or to hire guards or police agencies to defend them.

    It should
    be noted, however, that in the anarchist society there will be
    no “district attorney” to press charges on behalf of “society.”
    Only the victims will press charges as the plaintiffs. If, then,
    these victims should happen to be absolute pacifists who are opposed
    even to defensive force, then they will simply not press charges
    in the courts or otherwise retaliate against those who have aggressed
    against them. In a free society that would be their right. If
    the victim should suffer from murder, then his heir would have
    the right to press the charges.

    What of the
    Hatfield-and-McCoy problem? Suppose that a Hatfield kills a McCoy,
    and that McCoy’s heir does not belong to a private insurance,
    police agency, or court, and decides to retaliate himself? Since
    under anarchism there can be no coercion of the noncriminal, McCoy
    would have the perfect right to do so. No one may be compelled
    to bring his case to a court. Indeed, since the right to hire
    police or courts flows form the right of self-defense against
    aggression, it would be inconsistent and in contradiction to the
    very basis of the free society to institute such compulsion.

    Suppose, then,
    that the surviving McCoy finds what he believes to be the guilty Hatfield
    and kills him in turn? What then? This is fine, except that McCoy
    may have to worry about charges being brought against him by a surviving
    Hatfield. Here it must be emphasized that in the law of the anarchist
    society based on defense against aggression, the courts would not
    be able to proceed against McCoy if in fact he killed the right Hatfield.
    His problem would arise if the courts should find that he made a grievous
    mistake and killed the wrong man; in that case, he in turn would be
    found guilty of murder. Surely, in most instances, individuals will
    wish to obviate such problems by taking their case to a court and
    thereby gain social acceptability for their defensive retaliation
    – not for the act of retaliation but for the correctness
    of deciding who the criminal in any given case might be. The purpose
    of the judicial process, indeed, is to find a way of general agreement
    on who might be the criminal or contract breaker in any given case.
    The judicial process is not a good in itself; thus, in the case of
    an assassination, such as Jack Ruby’s murder of Lee Harvey Oswald,
    on public television, there is no need for a complex judicial process,
    since the name of the murderer is evident to all.

    Will not the
    possibility exist of a private court that may turn venal and dishonest,
    or of a private police force that turns criminal and extorts money
    by coercion? Of course such an event may occur, given the propensities
    of human nature. Anarchism is not a moral cure-all. But the important
    point is that market forces exist to place severe checks on such
    possibilities, especially in contrast to a society where a state
    exists. For, in the first place, judges, like arbitrators, will
    prosper on the market in proportion to their reputation for efficiency
    and impartiality. Secondly, on the free market important checks
    and balances exist against venal courts or criminal police forces.
    Namely, that there are competing courts and police agencies to whom
    victims may turn for redress. If the “Prudential Police Agency”
    should turn outlaw and extract revenue from victims by coercion,
    the latter would have the option of turning to the “Mutual” or “Equitable”
    Police Agency for defense and for pressing charges against Prudential.
    These are the genuine “checks and balances” of the free
    market, genuine in contrast to the phony check and balances of a
    state system, where all the alleged “balancing” agencies are in
    the hands of one monopoly government. Indeed, given the monopoly
    “protection service” of a state, what is there to prevent a state
    from using its monopoly channels of coercion to extort money from
    the public? What are the checks and limits of the state? None, except
    for the extremely difficult course of revolution against a power
    with all of the guns in its hands. In fact, the state provides an
    easy, legitimated channel for crime and aggression, since it has
    its very being in the crime of tax theft, and the coerced monopoly
    of “protection.” It is the state, indeed, that functions as a mighty
    “protection racket” on a giant and massive scale. It is the state
    that says: “Pay us for your ‘protection’ or else.” In the light
    of the massive and inherent activities of the state, the danger
    of a “protection racket” emerging from one or more private police
    agencies is relatively small indeed.

    Moreover,
    it must be emphasized that a crucial element in the power of the
    state is its legitimacy in the eyes of the majority of the public,
    the fact that after centuries of propaganda, the depredations
    of the state are looked upon rather as benevolent services. Taxation
    is generally not seen as theft, nor war as mass murder, nor conscription
    as slavery. Should a private police agency turn outlaw, should
    “Prudential” become a protection racket, it would then lack the
    social legitimacy which the state has managed to accrue to itself
    over the centuries. “Prudential” would be seen by all as bandits,
    rather than as legitimate or divinely appointed “sovereigns” bent
    on promoting the “common good” or the “general welfare.” And lacking
    such legitimacy, “Prudential” would have to face the wrath of
    the public and the defense and retaliation of the other private
    defense agencies, the police and courts, on the free market. Given
    these inherent checks and limits, a successful transformation
    from a free society to bandit rule becomes most unlikely. Indeed,
    historically, it has been very difficult for a state to arise
    to supplant a stateless society; usually, it has come about through
    external conquest rather than by evolution from within a society.

    Within the
    anarchist camp, there has been much dispute on whether the private
    courts would have to be bound by a basic, common law code. Ingenious
    attempts have been made to work out a system where the laws or standards
    of decision-making by the courts would differ completely from one
    to another.[7] But in my view all would
    have to abide by the basic law code, in particular, prohibition
    of aggression against person and property, in order to fulfill our
    definition of anarchism as a system which provides no legal sanction
    for such aggression. Suppose, for example, that one group of people
    in society holds that all redheads are demons who deserve to be
    shot on sight. Suppose that Jones, one of this group, shoots Smith,
    a redhead. Suppose that Smith or his heir presses charges in a court,
    but that Jones’s court, in philosophic agreement with Jones, finds
    him innocent therefore. It seems to me that in order to be considered
    legitimate, any court would have to follow the basic libertarian
    law code of the inviolate right of person and property. For otherwise,
    courts might legally subscribe to a code which sanctions such aggression
    in various cases, and which to that extent would violate the definition
    of anarchism and introduce, if not the state, then a strong element
    of statishness or legalized aggression into the society.

    But again
    I see no insuperable difficulties here. For in that case, anarchists,
    in agitating for their creed, will simply include in their agitation
    the idea of a general libertarian law code as part and parcel
    of the anarchist creed of abolition of legalized aggression against
    person or property in the society.

    In contrast
    to the general law code, other aspects of court decisions could
    legitimately vary in accordance with the market or the wishes
    of the clients; for example, the language the cases will be conducted
    in, the number of judges to be involved, and so on.

    There are
    other problems of the basic law code which there is no time to
    go into here: for example, the definition of just property titles
    or the question of legitimate punishment of convicted offenders
    – though the latter problem of course exists in statist legal
    systems as well.[8] The basic point,
    however, is that the state is not needed to arrive at legal principles
    or their elaboration: indeed, much of the common law, the law
    merchant, admiralty law, and private law in general, grew up apart
    from the state, by judges not making the law but finding it on
    the basis of agreed-upon principles derived either from custom
    or reason.[9] The idea that the state
    is needed to make law is as much a myth as that the state
    is needed to supply postal or police services.

    Enough has
    been said here, I believe, to indicate that an anarchist system
    for settling disputes would be both viable and self-subsistent:
    that once adopted, it could work and continue indefinitely. How
    to arrive at that system is of course a very different problem,
    but certainly at the very least it will not likely come about unless
    people are convinced of its workability, are convinced, in short,
    that the state is not a necessary evil.

    Notes

    [1]
    William C. Wooldrdige, Uncle
    Sam, the Monopoly Man
    (New Rochelle, New York: Arlington
    House, 1970), p. 101.

    [2]
    Ibid., pp. 103–104.

    [3]
    Ibid., pp. 95–96.

    [4]
    Ibid., pp. 100–101.

    [5]
    Morris and Linda Tannehill, The
    Market for Liberty
    (Lansing, Michigan: privately printed,
    1970), pp. 65–67.

    [6]
    Ibid., p. 68.

    [7]
    E.g., David Friedman, The
    Machinery of Freedom
    (New York: Harper and Row, 1973).

    [8]
    For an elaboration of these points, see Murray N. Rothbard, For
    a New Liberty
    (New York: Macmillan, 1973).

    [9]
    Thus, see Bruno Leoni, Freedom
    and the Law
    (Princeton, New Jersey: D. Van Nostrand Co.,
    1961).

    Murray
    N. Rothbard
    (1926–1995) was dean of the Austrian School,
    founder of modern libertarianism, and chief academic officer of
    the Mises Institute. He was
    also editor — with Lew Rockwell — of The
    Rothbard-Rockwell Report
    , and appointed Lew as his executor.
    See
    his books.

    Copyright
    2012 by the Ludwig von Mises Institute.
    Permission to reprint in whole or in part is hereby granted, provided
    full credit is given.

    The
    Best of Murray Rothbard

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