maandag, 1 januari 2001
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Revisiting Anarchism and Government

Libertarianism and Anarchism

Robert
Nozick started his Anarchy, State, and Utopia with a discussion of
whether a libertarian society would be anarchist, as the late Murray N. Rothbard
(as well as many others) had claimed.
Nozick concluded that even with full respect for everyone’s basic
negative individual rights, a society would “back into” a minimal state.

Nozick
argued that this backing into a minimal state comes about even if those who act
to defend – or punish culprits for violating – their rights on their own or
with hired help, are compensated for their worries. He claims there would still be serious concern about the sides
effects of such defensive action on the part of those no compensated. As he puts it,

Even
under the strongest compensation proposal which compensates victims for their
fear, some people (the nonvictims) will not be com­pensated for their fear.
Therefore there is a legitimate public interest in eliminating these border-crossing
acts [i.e., violations of the rights of some in the process of acting to punish
rights violations], especially because their commission raises everyone’s fear
of its happening to them.

In the resulting society one legal order would
prevail and there would be a single administration of this legal order,
contrary to what Rothbard and other libertarians have claimed, namely, that in
a truly free society competing legal orders and administrators – courts and
police – would operate within the same geographical or similarly homogenous
realm.

Nozick
was by no means the first libertarian who had confronted the issue of whether
libertarianism requires anarchism. Such
early individualists as Lysander Spooner, Josiah Warren and Benjamin Tucker,
and more recent Murray Rothbard, Roy Childs, Jr., the Tannehills, John Sanders
and Jan Narveson, including, in the background, Eric Mack and other less
explicit champions, all have advanced the anarchist libertarian case. Against these have stood Ayn Rand and many
of her followers, John Hospers, Douglas B. Rasmussen and Douglas J. Den Uyl and
others who have denied the alleged anarchist implications of
libertarianism. More precisely, they
have denied that the free society would need to abolish government. Instead, they have argued that such a
society would have a government that would consistently uphold and protect individual
rights, at least as its official, constitutional policy. This means that the infractions government allegedly
must commit against a system of individual rights would not be required.

In this
essay I wish to reconsider this dispute and show that in fact both the individualist
anarchists and the so called minarchists – those who support a properly limited
government – are right and their differences are only apparent. I will argue that in one respect no
competing legal orders would exist in a fully free society while in another
sense a sort of competition among different legal orders would be the natural
libertarian situation.

I will
first lay out the anarchist case for the libertarian society’s approach to adjudication
and law enforcement and indicate what about it suggests that it is truly
anarchistic. Next I will lay out the
minarchist case for the libertarian society’s approach to law and indicate what
makes it seem to be anti-anarchist. Finally I will show that the two sides are
not really distinct but only appear to be so because of certain preconceptions
about what a legal order must involve.

But before I start let me explain why this is of
general interest and should interest all who are concerned with political
philosophy.

The
dominant principles of Western liberal democracies are of two distinct
types. One stresses personal autonomy,
individual sovereignty. The other stresses some more or less extensive provisions
for those who are in dire straits – the poor, helpless, injured, etc.,
provisions that are obtained via taxation, which is, to use Nozick’s terms,
forced labor and therefore rights violating.
Whether either system can be stable, coherent, orderly,
non-contradictory and just in the policies it precipitates has been the subject
of numerous debates.

Arguably
one motivation for incorporating a serious, maybe even substantial, welfare
provision into an essentially liberal order is that without it no reason can be
found for supporting the traditional configuration of countries as political
entities. In other words, only if there
are enforceable positive duties all citizens have toward one another may a
government be justified at all. If no
such duties are involved in maintaining justice, perhaps the need for
government could not be established.
So, in a sense, one promise (or threat?) of consistent libertarianism is
that it would require the abolition of government altogether, including the
very idea of a country.

Let me now
state as neutrally as I can why anarchism seems to follow from libertarianism. The libertarian view is that each individual
is a sovereign person, in possession of basic negative rights to life, liberty
and property. None may violate these and other, properly derived, individual
rights. If one needs to protect these
rights, there is the option of doing so oneself or hiring others.

As with
all services human beings may offer to others, provisions may be offered by
various parties and none may acquire a protected, legal monopoly. So the protection of basic rights may be
provided to different individuals by different firms specializing in such
provisions. Ergo, no exclusion of
competing providers can be justified on libertarian grounds. This, in essence, support the anarchist
libertarian idea of the provision of legal adjudication and enforcement.

The
response to this has often been that such a system would be chaotic and lead to
a failure of providing decisive results – dissatisfied parties could always
seek yet another court, so there would be no court of last resort to issue a
final judgment. Such a situation would
basically render the legal system non-functional. It has also been argued that a legal system is essentially
different from other kinds of provisions because (a) it involves the use of
force against those who haven’t authorized this use (alleged criminals); (b)
there is a need for law prior to market transactions, so law itself is in a
different category (politics versus economics), and (c) one should not be a
judge in one’s own case (vis-à-vis self-defense in complex cases).

It is my contention that these two sides aren’t
opposites but emphasize issues on which common ground can be found.

What is Government?

Government
is, rather broadly put, a legal service institution the actions of policies of
which are backed by physical force and its threat. Since it is just the definition of government that’s in dispute
in this discussion, I will only give this rough characterization rather than a
formal definition for the time being.

Government
has been rejected by anarcho-libertarians on grounds that its very nature
involves fundamental injustices. Legal
services consist of enforcing laws, and laws are supposed to uphold
justice. If, as libertarians hold,
justice consists of respecting and protecting individual rights, legal services
involve adjudicating disputes about rights violations, overseeing conviction of
criminals, and providing for some of the police protection and military defense
for people who live within of the relevant jurisdiction.

Rights are
the objective criteria by which just adjudication is to be conducted, so far,
at least, as libertarians understand them.
This, as they tell it, fulfills the requirement of a civilized legal
system whereby the rule of law rather than of (the will of) human beings (as
rulers) is followed.

So
government here is criticized because it is considered impossible for it to
achieve justice without also breaching it. If the provision of legal services
is to be just, the argument goes, government must enjoy the full consent of the
governed, not just the majority of those being served by it. That consent may
be explicit or, some have argued, implicit – based not only on overt but tacit
agreement implied by one’s actions).

But does
even a properly limited government – can it – exist with the full consent of
the governed? Some argue it has never done so and, indeed, cannot because it is
necessarily coercive, involving as it does the forcible monopolization of the
legal services it provides.[1] To achieve justice, it is held, legal
services need to be provided in ways government cannot provide them, namely, absent
any kind of coercion.

The reason
government is supposed to be coercive by its very nature is often provided by
reference to Max Weber definition of it “A state is defined by the specific
means peculiar to it, the use of physical force. The state is a human community
that successfully claims the monopoly of the legitimate use of physical force
within a given territory. Politics, then, means striving to share power or
striving to influence the distribution of power, either among states or among
groups within a state.”[2]

Notice
that Weber talks here of the state as a human community, in the fashion of
Hegel, Marx, Green and Bosanquet, rather than of classical liberals such as
Locke, Mill or Spencer. But many make
use of this conception of the state to characterize government as an organization
that monopolizes the use of force within some geographic area and raises its
revenue through coercive taxation.[3]
Tyler Cowen gives a slightly different definition government or state,
characterizing it by “finance through taxation, claim of sovereignty, ultimate
decision-making authority, and prohibitions on competitive entry.”[4]
And John Hasnas tells us that “What appears to be essential for an organization
to be considered a state is that it monopolizes the basic policing,
rule-making, and adjudicative functions in an identifiable area and funds these
functions through taxation.”[5]

What is of
concern to me here is not the nature of the state as it is closely linked to
Hegel’s and Marx’s ideas, as a holistic, organic community of human beings, but
the nature of government, which is the institution that may be established to
provide legal services for human communities.
As the United States Declaration of Independence refers to it, such
“governments are instituted among men, deriving their justice powers from the
consent of the governed.” Here
government is not a state, meaning a human community of a certain type, but an
institution within such a community.

The
libertarian controversy concerns whether governments, understood not as the
state but as an institution within a human community, need to be in violation
of basic individual rights or might they exist and function without doing
violence to those rights. And that is
my concern here as well.

In the
broad field of political theory – apart from the various schools that defend
various configurations of human politics – there is much controversy about the
scope of legal services or governments.
Some, as already noted, would include the provision of a wide set of
goods and services apart from the protection of individual, negative human
rights. Indeed, some deny that such rights exist and conceive of government in
a pro-active, affirmative mode, whereby the laws mandate conduct that produces
goods and services for various segments of the citizenry.

Others,
especially in the classical liberal political tradition, see the protection of
individual rights as the sole service a properly conceived government provides. And it is among these where there is a
further, more specialized controversy, concerning whether within some region of
inhabitation only one or several governments or providers of legal services
might properly or justly exist.[6]

To
begin with, is there some kind of insidious, rights violating monopoly afoot
when legal services are being delivered by governments, or must there be? Or might government be a monopoly of the
benign sort that we find in the provisions of all goods and services: even a
barber shop has a monopoly, at the exact place where it is located, as does a
grocery store, an amusement park, an apartment complex or a gate housing community?

To
obtain the services of a competing barber shop, one needs to take the trouble
to go to a location other than the one where the original shop is located. So
with all other competing providers. Is government merely a larger monopoly of
this kind? Or is its monopoly necessarily held coercively, by the violation of
the rights of others who would also want to offer its services?

In
certain cases of providing goods and services no monopoly of even the former,
benign sort, is involved, as when one purchases take-out pizza. One need not go anywhere to get the benefit
of competing providers, only make a phone call to different establishments. Trash pickup is also provided in this fashion,
as is mail delivery and satellite television reception.

May Governments Exist?

I
have in the past argued that governments may serve communities without any
degree of coercion, involving no coercive monopolies.[7] Jack Sanders, who argues for a society
without government, discusses whether the view proposed by me qualifies as anarchist
or archist.[8] He claims that in the position that I hold
the concept "government" is used idiosyncratically since it proposes
that one can have such an institution without any measure of coercion. Yet,
Sanders argues, history shows that no government has ever existed that did not
engage in extensive coercive activities.

One
response to this point[9]
is that the concept of "government," not unlike that of
"marriage," is rarely – perhaps never – instantiated flawlessly. These are normative concepts and while it is
important to learn whether instantiating them is realistically possible,
it is not always decisive that they are rarely instantiated. So the history of
governmental conduct is not decisive as to the nature and morality of government,
any more than the history of actual marriages is decisive as to whether
marriages can exists as they ought to, whether as usually conceived they
could be a proper arrangement between couples.

Another
response, hinted at earlier here, is that in the relevant tradition, namely,
classical liberal political theory, the concept “government” is used in a way
that suggests that it has been held to be compatible with respect for individual
rights. John Locke, for example, not only deemed government compatible with
such respect but believed it was needed to provide effective protection of such
rights. And the U. S. Declaration of
Independence, as already noted, sketches a characterization of the function of
government that also suggests such compatibility. And, more recently, Ayn Rand
and her students have argued that government can exist without taxation, the
practice that Murray Rothbard and others have seen one that is decisively
anti-libertarian about it.

It also
bears noting that anarchist libertarians are very different from the usual type
since they defend various arrangements in society that serve the sole purpose
of defending individual rights, calling these "defense agencies,"
"protection agencies," "justice services," whatever.[10] As far as I understand, this pretty much
puts these libertarians in the camp of those who do, in fact, defend some form
of government, albeit one free of the flaws of governments defended by
socialists, welfare statists, and rejected by other anarchists who want to laws
at all to govern societies but believe that communities will flourish through
cooperation not overseen by any laws, only by morality.

Thus
Sander’s claim that the concept of government proposed by me here and elsewhere
is idiosyncratic is open to serious doubt.

What is A Monopoly of the Legal Use of Force?

The
question over which there is perhaps the greatest controversy among those who
want legal services provided solely for the protection of individual (and, of
course, derivative, including contractually instituted) rights, is whether
governments need to be a coercive
monopoly – like, say, the post office’s first class division – rather than a
benign monopoly, like that of a privately owned apartment house or an air carrier
(once air born).

In order
for the post office to retain all first class mail service, it must be prohibited
by a legal agency for anyone to offer this service for sale. The monopoly, then, of the post office is coercive. A monopoly is not coercive if it exists by
virtue of overwhelming customer support – for example, Microsoft’s dominance in
the software industry is not coercive although it could reach the level of
monopoly, namely, being the sole provider of the relevant goods and services.[11]

A
privately owned apartment house is a de
facto monopoly in the same way as any particular ownership constitutes such
a monopoly, especially to someone else who wants just that item but cannot have
it since it is now owned by another.
The owners may exclude those they do not wish to deal with from
utilizing the provisions, just as anyone may set terms of use or non-use for
others, by, say, evicting renters. An
passenger air line, in turn, becomes a de
facto monopoly between ports of embarkation and disembarkation. Flying
United Airlines from LA to NY, one has no access to competitors while flying
over, say, Kansas.[12]

In short,
some provision of services, given the nature of the service, may appear to be
coercively monopolistic. However, since
customers are aware of this and prior to entering the exchange have every
chance of seeking out competitors who have every chance, in turn, to enter the
market, the apparently coercive monopoly is not in fact such.

It
is very likely that the service envisioned to be provided by so called
(non-coercive) legal service agencies, as well as governments envisioned to
only protect individual rights by operating within the terms of such rights,
appear to have some of the characteristics of coercive monopolies. Citizenship, for example, is a condition
that runs over the long term. One of
its great benefits is, indeed, that it offers a substantial measure of
predictability and objectivity, that is, the rule of law.

But is not
one of the signs of non-coercive monopolies that potential competitors are not
legally excluded, prohibited form entry into the market? Can there be bona fide competition
among governments – for citizens, businesses and such – so that despite retaining
some characteristics that resemble those of coercive monopolies, they are in
fact non-coercive? Governments of this
only apparently monopolistic type would be unlike postal monopolies in first
class mail provision but like air carrier between ports of embarkation and disembarkation?

Why Any Kind of Monopoly At All?

There are
those who challenge this by maintaining that no such even apparent monopoly is
needed for the provision of legal services.
That is, one could simultaneously gain those services from competing agents
– as it were shop for them on the model of shopping for home delivered pizzas
or plumbing services. The idea is that
one could gain criminal legal services, as well as others of course, from one
legal agent but then decide, no, one no longer wishes that agent to be the
provider and without having to change location, subscribe to another legal
agent (or, in plainer language, change one’s citizenship).

One
might put the question another way: Could there be legal service provisions
without countries? Could legal service
provisions overlap, be delivered to citizens without their having to move and
even divided into various parts where some agency offers police service,
another prisons, and yet another adjudication?
Or is this impossible along lines that it is impossible that during a
flight from LA to NY one could enjoy the benefits of instant change of air
carrier services? Perhaps even the
separation of distinct parts may not work, just as it wouldn’t work for a
patient in a hospital to get a bed from one agency, blood tests from another
and nursing from yet another, without some common provider that coordinates it
all?

Is then Government Necessarily Coercive?

Arguably,
the anarchist branch of those who would limit legal services to individual
rights protection believe that government amounts to a necessarily coercive
agency. Therefore, it cannot be
justified in terms invoking the principles of individual rights – for example,
to life, liberty and property.

The
reason is that the kind of monopoly government enjoys within some homogeneous
region is taken by anarchist to be necessarily coercive or unjustifiably
exclusive of competing legal service provisions. The idea is that by excluding alternative providers, a government
would practice restraint of free trade.
It is, I take it, as if one pizza delivery service were to prevent
others from reaching the same customers.
Of course, one could, via contract, establish such exclusive provision
of services but this would not be necessary for getting pizzas delivered efficiently.

Some
champions of individual rights who do not take themselves to be anarchists – or
who find something seriously amiss with the anarcho-libertarian critique of
government – dispute that governments must be coercive even though they hold
that governments would naturally govern within a homogeneous region, in a given
country, as it were. They admit that
throughout history governments that have had jurisdiction over homogeneous
regions have been coercive to a greater and lesser extent. But they contend that this isn’t unavoidable
or necessary. Just as marriages could
be free of major and minor flaws, although few in fact are, so, too, governments
could be, in principle, free of flaws, including coercive policies such as
taxation or conscription. Even banning
secession need not be a part of government.
(The right of secession is but the right of exit and may be exercised
provided no debts or other legal obligations are owed anyone in the region from
which a group or individual might want to secede and no hostages – e.g., slaves
– are taken in the process.)

Even by the reconstituted – non-Hegelian – conception
of Weberian government, government is only a monopoly, not a coercive
monopoly. Weber said that government “successfully claims the monopoly of the legitimate
use of physical force within a given territory.” This does not imply that such a successful claim must itself
establish a legal or coercively maintained monopoly. It is a monopoly, of course, but not necessarily a coercive one.

The Morality of Self-Defense

We need to
continue this examination by noting that arguably human beings ought to
defend themselves against criminals and foreign aggressors. As a matter of ethics, this seems to be
uncontroversial among those involved in the debate about the nature of limited
government or legal services. Furthermore, if the division of labor is a sound
principle, not everyone ought to do his own defending – it is quite complicated
to do so,

with due process constraints, especially – but ought,
instead, to employ specialists.

Government
could be construed to be a specialist in securing justice – just as the dentist
is a specialist in securing dental health, though with significant differences
that render it a pre-market institution since it is required for the
maintenance, elaboration and protection of individual, including private
property, rights.

What is in
dispute is whether the competition that libertarians see as natural in the
delivery of many services could be obtained while retaining the traditional
geographical homogeneity of countries or would such competition or
non-exclusion make room for overlapping – Swiss-cheese type – jurisdictions. Would it not be a violation of individual
rights to have governments that aren’t competing within a given geographical
region, akin to how different pizza delivery providers compete in the same
neighborhood?[13]

A Certain Kind of Competition

The answer
that non-anarchists would be inclined to give is that there can be competition
between governments just as there can be competition between different
apartment houses and gated communities – or airlines while in flight –
but not the kind that takes place within the same territory, as is the case
with pizza delivery services. Just as
one can move from one apartment house to another, one gated community to
another, and one airline service provider to another (once a flight is completed),
one can also move from a legal jurisdiction to another. But one could not have legal services
provided in the fashion as pizza deliveries. This is because the type of
service being provided involves a long term commitment to having one’s rights
upheld, something that requires mutual access to courts, police services, and
so on.

This
answer disputes the viability, at least until the availability of transporter
type machines familiar from Star Track series, of crisscrossing jurisdictions
in criminal law, that is, the Swiss-cheese conception of governments. It is argued that such a way of providing
legal services runs the serious risk of in principle irresolvable legal
conflicts. For example, a criminal
could run off to a more favorable competing court after being convicted by one.
Such a prospect would defeat the very point of law, namely, the resolution of a
dispute.

As
noted above, though, libertarian anarchists object by noting that if the competition
is not within the same area, analogous to the pizza delivery business, then one
is coerced to take one’s legal “business” elsewhere, which would be a violation
of basic rights. They also claim that
there is no risk of accused or convicted criminals switching jurisdictions
mid-way through legal proceedings because it would not pay, in the long run,
for courts in adjacent or even remote jurisdictions, to go against the
judgments of competing courts.

This
analysis is, I believe, mistaken. It
rests on the general theory of the utility of common standards in market
services. Indeed, in markets providers
do often converge on the standards they deploy for their customers, so that
after the initial conflict between different VCR services, the market
eventually settled for one over the other.

Justice,
however, is not a utilitarian but rights based objective, aiming at settling
disputes in individual cases, not just over the long run. Even if in time the various courts would see
the utility of adhering to common standards, at any given time they may well
not do so, and this would be an obstacle to justice that is supposed to be
swift and efficient for individual citizens.

Furthermore,
one needs to consider that although pizza delivery does occur within the same
territory, competing dentists and even department stores do so while occupying
at least slightly different localities.
Even at a mall or the traditional market place, competition occurs among
those who occupy different locations.
One needs to move from, say, The Gap to Structures, from Sears
to J. C. Penny’s – one cannot have it all brought to one’s doorstep
where one can stay put.

Yet it could
be replied to this that in fact all those providers could compete in the
fashion of pizza delivery providers.
With the proliferation of on-line merchandising this is become a
familiar process: Everything is brought to the stationary customer. So it is not necessary for customers to go
to providers they can stay at home. And
the same is envisioned by anarchist as far as legal services are concerned.

However,
in response to this arguably the delivery system itself benefits from the
un-libertarian coercive monopoly status of roads, something that a completely
free society would not have available.
Governments, however, or justice services require a homogeneous sphere
of jurisdiction, if only because their customers would ordinarily live on
different localities – namely, their homes – and to come together for the usual
legal services, the government would have to be stationary, not the customers.

Yet this
does not preclude competition among governments – even now, in a roughly
analogous circumstance, New Jersey competes with New York providing citizens
with legal services, attracting business firms, citizens, and so on to where
their respective governments are located.
This suggests that there could be competition among stationary
governments in the sense that once one finds the services provided by one of
them unsatisfactory, one can move to the jurisdictional region of another.

Thus it
seems that both the traditional conception of a homogeneous country and free
and open competition could be secured, satisfying the demands of minarchists
and anarchists among libertarians.

It has
always been my view that there is some misunderstanding about this matter among
supporters of the free society – they need not be divided on it; so long as the
commitment to respecting individual rights is unwavering, a resolution between
the anarchists and minarchists, along lines sketched above, makes good sense.

Could Law be just Another
Business?

Now I wish
briefly to turn to a subdivision of the argument between minarchist and
anarchist libertarians, namely, the issue of whether law ought to be an enterprise,
just as other enterprises that operate in the market place.

Among
scholars who have been studying the structure of a free legal system there are
several who model the nature of all law on enterprise. Bruce Benson’s book stands out as a clear
example, with its title, The Enterprise
of Law (San Francisco: Pacific Research Institute for Public Policy, 1990).
The subtitle of Benson’s book, "Justice without the State," provides
a clue to the difficulty with the idea of law as enterprise.

The
alternative Benson poses is that between freedom of enterprise and
statism. Others, such as Randy Barnett,
seem also to pose this choice. Yet there is a third option. Free enterprise within the framework of law
that protects the right to freedom.

As noted
already, the concept of "state" is a complex one in political and
legal theory but usually it means a society conceived as an organic whole. Hegel, Marx, Green and Bosanquet all worked
with such a meaning of "state," as do many others who advocate a more
or less powerful authoritarian political system. Indeed, Bosanquet might even
be said to argue for a minimal state, given the context of his discussions and
arguments with the British socialists and social democrats. (He, for example,
opposed the welfare programs of the state in part on the ground that they are
demoralizing. He agreed that government
cannot make people morally good, etc.)

Despite
some relatively minimal statists in the history of political theory, the concept
that seems to be the best candidate for a more benign substitute without losing
certain distinctive political components is not "enterprise" but
"government." There are some
fairly clear-cut reasons why the enterprise model of law has problems.

First,
enterprises presuppose property rights. In order to invest, trade, hire, fire,
contract and do all those things enterprises are likely to do, those who embark
upon an enterprise must have their right to private property and freedom of
trade/contract clearly enough defined and well enough protected so as to
carry on with their tasks. And the
definition and protection of private property and related rights within a
complex society requires law and its enforcement.

There is
then a serious threat of an institutional infinite regress if law itself is understood
as just one more form of enterprise.
There is your barbershop, your auto factory, farm, insurance agency, and
brokerage firm and next on the block is
your adjudicating institution. Whereas
with the others there can be several on the same block, almost literally, with
the adjudicating agency several different ones serving the community will pose
problems. Here is an example:

Suppose
one is hired by the barbershop, another by the factory and a third by the
insurance agent. And suppose some of
these come into legal dispute among themselves. How is the adjudication to
ensue? Will the plaintiff be able to
secure the presence of the defendant in the same courtroom? Not if the defendant refuses to deal with
the same adjudicating agency as the plaintiff.

More
importantly, suppose there is a dispute between the adjudicating agency and
some other enterprise regarding contract violation or property rights. Who will adjudicate this dispute? And how will jurisdiction over the parties
be determined?

Benson
& Co. have some answers to these questions, mainly along lines of interagency
contractual agreements. This solution
resembles international law. In the
international arena we have no binding court of last resort, yet often the
World Court and similar bodies function quite successfully as adjudicators of
disputes between parties with different citizenship and, indeed, between
different countries. Why so? Because there are various motivations that
impel the parties to come to a resolution, usually involving business disputes.

The International Model: Problems
and Possibilities

There are
also some serious problems with the international adjudication process,
especially where criminal law is concerned.
Here compliance is not so readily come by. Different countries hold different standards of justice and
reciprocity is often resisted. When Yugoslavia’s Past-president Slobodan
Milosevic was indicted by an international court, compliance wasn’t forthcoming
because Yugoslavia did not then grant the authority of the court, not at least
within its jurisdiction. When the
presence of ex-Chilean dictator Augusto Pinochet in the Spanish courts was
sought, he had to be captured in England where he went for medical treatment. Chile did not cooperate with the Spanish
authorities. And when Bertrand Russell
and Jean-Paul Sartre established the international court in which the United
States of America was indicted and, if I recall correctly, convicted of war
crimes in Vietnam, the US government refused to respond.

And these
are only the more visible cases.
Thousands of others where international cooperation in criminal
adjudication is absent understandably go unnoticed. Those, I think, may be deemed failures of the enterprise of law
or at least the model of law as a sort of competitive enterprise.

On the
other hand, one can embrace the enterprise model with some modifications that
will leave intact the idea that systems of adjudication need to be broadly
integrated in order for them to be functional.
If we consider, say, the USA, Canada, Mexico, New Zealand, Australia,
Japan and all other countries as forums of dispute adjudication, the possibility
of changing one’s residence or citizenship affords one something akin to benefiting
from competition. Even within countries
with a substantial federalist political organization there is the opportunity
for benefiting from competition. New
York versus New Jersey, Pennsylvania, and so on, all the states compete for customers
of their adjudication services.
Certainly we see such competition functioning vis-à-vis taxation, which
in this context could be viewed as court fees.
They vary and parties to potential disputes will shop to find the most
efficient process at the lowest cost.

In this
scenario, however, the forums wherein adjudication can proceed are large
habitations, with thousands or millions of potential disputants signed up
within the same homogeneous system.
They are usually committed fairly long-term and may leave only if they
have a clean record and no adjudication pending that involves them. Moreover, within the system various layers
of authority operate, so that the appeal process is integrated and there is in
principle a court of last resort.

In this
sense adjudication service resembles some other business enterprises wherein
one signs up for the long haul.
Insurance services are like this, as are apartment rentals, car leasing
and, yes, marriages. Midway through the
duration of the long-term contract the option to exit does not exist or exists
only at great cost. And this is because
the very idea underlying these kinds of relationships, between customers and
service providers or trading partners, is that reliable, ongoing and
predictable arrangements are of benefit to all of the parties.

Is Law Enterprise or Not?

So
in one sense the idea of the enterprise of law is a mistake – if it is modeled
on the shopping mall, where one can conduct trade fast and furious and switch
trading partners without much loss – or on pizza delivery, where one need but
call for the service and it’ll be provided for a price to one’s own location.
The "enterprise" of law will normally involve what we might dub
“customer commitments” over the long haul, known as citizenship.

As noted
already, enterprises as such presuppose the existence of the adjudication
forum. So there is something basically
different between law and enterprise.
(Of course, there is the further non-negligible difference that the
customers of most other enterprises tend to be willing to deal when the
important processes of the enterprise ensue, whereas in law half the customers
– those accused of crimes – would usually not be accommodating at all.)

In
another sense, however, law involving enterprise is already the norm. Different
legal jurisdictions are already offering different services and so there exists
competition. Sadly, of course, much of
the competition is between adjudicating agencies that offer not just different
levels of efficiency and competence but, actually, fundamentally different
goods. Some are in the business of
providing what is pretty close to a just adjudicative and punitive service,
while others are offering subjective, arbitrary decisions and services. But we can easily imagine this to be different,
so that the competition involved ensues among agencies that could well all be
aiming for just resolutions.

Funding Legal Services

Finally, a
major objection to the view of government that is both monopolistic as well as
competitive raises the issue of how such an agency might be funded without coercion.[14]

Some
people consider Rand and those who find her position sound a statist, although
she never advocated a state.[15] What she did defend is the institution of
government but with no coercive powers.
But what about her characterization of government as the institution
that has a monopoly on the legal use of force?

The
monopoly being considered in this context could well be necessary yet not
coercive. It does not mean that there can only be one government in the world
but that in any reasonably sized homogeneous geographical area, only one such
institution makes sense.

This is
arguable in view of the kind of service government (or call it what you will,
say, legal authority) is to deliver to citizens, its customers), just as some
other providers would have a monopoly, at least over some period of time (e.g.,
an airline, while you are traveling, an apartment house, a gated community).

The point
in this final comment is only put on record a protest against calling people
who defend this view as statists. It
lends no light to the issue at hand among libertarians.

So
it seems that what we have in the enterprise of law approach to the nature of a
legal order is either flawed or substantively no different from one taken by
those who claim that a human community ought to have a government the task of
which is “to secure these rights,” namely, to “life, liberty and the pursuit of
happiness.” Government, though not the
state, is just that kind of institution in a community that has this task and,
properly or ideally, no other.

Endnotes:

[1] Arguably
though, everyone’s consent may not be needed.
Consider this: I hire a body guard and consent to his or her defending
me against all aggressors. Some person
then attacks me and my body guard defends me from this attack. Now does it matter that this person who attacked
did not give consent to my body guard defending me? So does it matter that a government that acts purely defensively
isn’t consented to by, say, criminals or foreign aggressors? This would be a government that does not
coercively collect taxes or such, so consent would only be relevant to its
getting paid freely, voluntarily by those whom it defends. Such payment could
be in the form of premiums, as with insurance, or per service, as with some
attorney or dentist fees, or bundled with prices for various goods and services,
as with payments for newspapers that also provide magazines on Sundays. For dealing
with the free rider problem, see endnotes #7.

[2] Max Weber, Economy and Society: An Outline of Interpretive
Sociology (1978), p. 56.

[3] See,
e.g., Murray N. Rothbard, For a New
Liberty 49-50 (1973); John Hospers, “What Libertarianism is,” in Liberty for the 21st Century 14 (Tibor R. Machan &
Douglas B. Rasmussen eds. 1995); David Boaz, Libertarianism 187 (1997); Robert Paul Wolff, In Defense of Anarchism 1 (1970); Ludwig von Mises, Liberalism in the Classical Tradition 35
(1985).

[4] Tyler
Cowen, Law as a Public Good, 8 Econ. & Phil. 249, 250 (1992).

 
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Door Tibor R. Machan, topic: Anarchisme
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