The dominant principles of Western liberal democracies are of two distinct types.
Libertarianism and Anarchism
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.
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.
effects of such defensive action on the part of those no compensated.
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.
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
was by no means the first libertarian who had confronted the issue of whether
libertarianism requires anarchism.
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.
of her followers, John Hospers, Douglas B. Rasmussen and Douglas J. Den Uyl and
others who have denied the alleged anarchist implications of
have denied that the free society would need to abolish government.
society would have a government that would consistently uphold and protect individual
rights, at least as its official, constitutional policy.
must commit against a system of individual rights would not be required.
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.
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
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
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.
general interest and should interest all who are concerned with political
dominant principles of Western liberal democracies are of two distinct
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.
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
are enforceable positive duties all citizens have toward one another may a
government be justified at all.
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.
state as neutrally as I can why anarchism seems to follow from libertarianism.
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, there is the option of doing so oneself or hiring others.
all services human beings may offer to others, provisions may be offered by
various parties and none may acquire a protected, legal monopoly.
provided to different individuals by different firms specializing in such
competing providers can be justified on libertarian grounds.
libertarian idea of the provision of legal adjudication and enforcement.
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
basically render the legal system non-functional.
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).
opposites but emphasize issues on which common ground can be found.
What is Government?
is, rather broadly put, a legal service institution the actions of policies of
which are backed by physical force and its threat.
in this discussion, I will only give this rough characterization rather than a
formal definition for the time being.
has been rejected by anarcho-libertarians on grounds that its very nature
involves fundamental injustices.
services consist of enforcing laws, and laws are supposed to uphold
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.
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.
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).
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.
services need to be provided in ways government cannot provide them, namely, absent
any kind of coercion.
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.”
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.
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.
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.”
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.”
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.”
government is not a state, meaning a human community of a certain type, but an
institution within such a community.
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.
my concern here as well.
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.
especially in the classical liberal political tradition, see the protection of
individual rights as the sole service a properly conceived
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.
begin with, is there some kind of insidious, rights violating monopoly afoot
when legal services are being delivered by governments, or must there be?
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?
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?
certain cases of providing goods and services no monopoly of even the former,
benign sort, is involved, as when one purchases take-out pizza.
of competing providers, only make a phone call to different establishments.
as is mail delivery and satellite television reception.
have in the past argued that governments may serve communities without any
degree of coercion, involving no coercive monopolies.
without government, discusses whether the view proposed by me qualifies as anarchist
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.
response to this point
is that the concept of "government," not unlike that of
"marriage," is rarely – perhaps never – instantiated flawlessly.
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.
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
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.
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.
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.
Sander’s claim that the concept of government proposed by me here and elsewhere
is idiosyncratic is open to serious doubt.
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).
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.
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.
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
others, by, say, evicting renters.
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.
some provision of services, given the nature of the service, may appear to be
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.
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.
that runs over the long term.
its great benefits is, indeed, that it offers a substantial measure of
predictability and objectivity, that is, the rule of law.
one of the signs of non-coercive monopolies that potential competitors are not
legally excluded, prohibited form entry into the market?
among governments – for citizens, businesses and such – so that despite retaining
some characteristics that resemble those of coercive monopolies, they are in
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?
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.
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).
might put the question another way: Could there be legal service provisions
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
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
the anarchist branch of those who would limit legal services to individual
rights protection believe that government amounts to a necessarily coercive
justified in terms invoking the principles of individual rights – for example,
to life, liberty and property.
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.
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.
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.
throughout history governments that have had jurisdiction over homogeneous
regions have been coercive to a greater and lesser extent.
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.
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.)
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.”
establish a legal or coercively maintained monopoly.
The Morality of Self-Defense
continue this examination by noting that arguably human beings ought to
defend themselves against criminals and foreign aggressors.
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,
instead, to employ specialists.
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
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.
rights to have governments that aren’t competing within a given geographical
region, akin to how different pizza delivery providers compete in the same
A Certain Kind of Competition
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.
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.
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
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.
legal services runs the serious risk of in principle irresolvable legal
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
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.
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.
analysis is, I believe, mistaken.
rests on the general theory of the utility of common standards in market
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.
however, is not a utilitarian but rights based objective, aiming at settling
disputes in individual cases, not just over the long run.
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.
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.
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.
to providers they can stay at home.
the same is envisioned by anarchist as far as legal services are concerned.
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.
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.
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.
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.
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.
scholars who have been studying the structure of a free legal system there are
several who model the nature of all law on enterprise.
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.
alternative Benson poses is that between freedom of enterprise and
seem also to pose this choice. Yet there is a third option.
that protects the right to freedom.
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.
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
cannot make people morally good, etc.)
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
fairly clear-cut reasons why the enterprise model of law has problems.
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.
definition and protection of private property and related rights within a
complex society requires law and its enforcement.
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
your adjudicating institution.
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:
one is hired by the barbershop, another by the factory and a third by the
these come into legal dispute among themselves. How is the adjudication to
secure the presence of the defendant in the same courtroom?
the same adjudicating agency as the plaintiff.
importantly, suppose there is a dispute between the adjudicating agency and
some other enterprise regarding contract violation or property rights.
& Co. have some answers to these questions, mainly along lines of interagency
resembles international law.
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
impel the parties to come to a resolution, usually involving business disputes.
also some serious problems with the international adjudication process,
especially where criminal law is concerned.
Here compliance is not so readily come by.
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.
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.
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.
are only the more visible cases.
Thousands of others where international cooperation in criminal
adjudication is absent understandably go unnoticed.
or at least the model of law as a sort of competitive enterprise.
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
with a substantial federalist political organization there is the opportunity
for benefiting from competition.
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.
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.
of authority operate, so that the appeal process is integrated and there is in
principle a court of last resort.
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.
duration of the long-term contract the option to exit does not exist or exists
only at great cost.
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.
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.
already, enterprises as such presuppose the existence of the adjudication
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.)
another sense, however, law involving enterprise is already the norm. Different
legal jurisdictions are already offering different services and so there exists
the competition is between adjudicating agencies that offer not just different
levels of efficiency and competence but, actually, fundamentally different
providing what is pretty close to a just adjudicative and punitive service,
while others are offering subjective, arbitrary decisions and services.
so that the competition involved ensues among agencies that could well all be
aiming for just resolutions.
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.
people consider Rand and those who find her position sound a statist, although
she never advocated a state.
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?
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.
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).
in this final comment is only put on record a protest against calling people
who defend this view as statists.
lends no light to the issue at hand among libertarians.
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
state, is just that kind of institution in a community that has this task and,
properly or ideally, no other.
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.
then attacks me and my body guard defends me from this attack.
did not give consent to my body guard defending me?
isn’t consented to by, say, criminals or foreign aggressors?
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.
Sociology (1978), p. 56.
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
Cowen, Law as a Public Good, 8