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 Roderick T. Long              

Anarchism as Constitutionalism, Part 2

In response to my December 7th post
Anarchism as Constitutionalism: A Reply to Bidinotto, Robert Bidinotto writes:

Dear Roderick Long:

Your online critique of my anarchism piece at was just called to my attention.

Let me assure you that I still stand firmly behind what I wrote in “The Contradiction In Anarchism.” Briefly, I don’t believe your commentary begins to satisfactorily address the anarchist problem of the “final arbiter” that I raised – specifically, the anarchist dilemma of trying to establish a stable legal framework, while at the same time allowing individuals to retain an unlimited right to secede from that framework, and any decisions of a market-spawned legal arbiter (assuming that such an arbiter could even arise from “the market” and attract the unanimous support it would require).

Every criticism you raise against a constitutionally limited government applies as forcefully to “market anarchism” – in fact more so. That’s because under anarchism, no final arbiter would be permitted to enforce its verdicts on anyone.

By anarchist lights, all social institutions must arise through voluntary consent, and all social interactions must be based on voluntary contract. Hence, no one can be “bound” by any agency or contract to which he has not voluntarily and personally consented. To be logically consistent with this anarchist claim of unlimited individual sovereignty, then, any legal agency or arbiter could only arise via voluntary social consensus.

But it therefore would be vulnerable to the whimsical secession of the first malcontent. There is simply no way for a voluntary legal apparatus to enforce any law (or interpretation thereof), not even upon a single lone dissenter, and still remain consistent to the anarchist premise of unlimited personal sovereignty.

In logic, there’s really no pathway for anarchists around this sticky dilemma. It will arise in their faces immediately and often – e. g., at the first confrontation between anti-abortionists and pro-choicers over all those alleged “murders.” And not just over definitions of literal life-and-death importance. Common sense tells us that such a lone dissenter (call him a “secessionist”) will opt out in many cases in which a ruling goes against him; and it also tells us that the worst individuals, morally speaking, will be the first and most frequent secessionists. Such a system would reward those most prone to thumb their noses at it. But in principle, what could a voluntary legal system do about it?

To simply declare (as you do) that a viable anarchism must be grounded in a favorable cultural-value consensus, is to evade that issue. While it’s true that a limited government requires broad social support for its overall constitutional framework in order to survive, it does not require unanimous support for, or individual consent to, each of its specific laws, decisions, interpretations, and legal verdicts. A proper constitutionally limited government would offer processes of appeal for dissenters; but it’s [sic] final court of appeal would be empowered to enforce each of its verdicts decisively.

By contrast, “market anarchism” would require much more than just a broad consensus: it would require specific agreement – a unanimity of public opinion – about each and all of the “verdicts” emanating from its voluntary legal apparatus. To remain consistent with anarchist premises, those decisions could not be enforced against a single unwilling dissenter.

In short, “consent of the governed” means very different things under constitutional government and market anarchism. In the former case, the consent required is to a broad and general framework; in the latter, it would be to each specific law, decision, policy, and verdict – and be unenforceable. In practice, anarchism would replace limited government’s hated “social monopoly of force” with social competition of force.

I wish that time permitted a point-by-point response to your critique right now, but it doesn’t. My current projects and area of focus can be found on my own Web site,, and blog,

I do hope to be able to get back to this issue at some other time. But I thank you for your willingness to take seriously my criticism of anarchism, and to devote to it so much of your time and attention.

Robert Bidinotto

I thank Mr. Bidinotto for his reply.

His response, however, rests on a misunderstanding of Market Anarchism. He apparently believes that, under Market Anarchism, no one may be subjected to any legal procedure to which she has not consented.

I agree that this would probably be an absurd and unworkable system. But Market Anarchism does not entail, and I know of no Market Anarchist who has advocated, any such system. If I initiate force against Mr. Bidinotto, of course he does not have to get my consent before he calls in a protective agency to restrain me; nor does he have to obtain my consent before initiating court proceedings against me. (Actually “absurd and unworkable” may be too strong a characterisation. Voluntary legal systems without coercive sanction have operated successfully in the past – e.g., the Law Merchant. See my discussion of different kinds of legal system. My point, though, is that Market Anarchists are not committed to renouncing coercive sanctions against dissenters.)

It is vitally important to avoid conflating two very different claims: a) that no legal institution has the right to employ initiatory force against unwilling dissenters, and b) that no legal institution has the right to employ retaliatory force against unwilling dissenters. Market Anarchists affirm (a), but certainly not (b).

Of course many minarchists will say that they, too, affirm (a) and not (b). So wherein does the anarchist/minarchist dispute reside? The answer is that for Market Anarchists, coercively barring someone from practising any legitimate profession – including the provision of legal services – counts as initiation of force.

So for Market Anarchists, any person has the moral right to engage in legislative, executive, and judicial services, just as any person has the moral right to run a factory. It does not follow, however, that anyone has the right to conduct her legislative, executive, or adjudicative activities in a rights-violating way, any more than a factory owner has the right to run her factory in a rights-violating way (say, by employing slave labour, or dumping refuse on others’ property). Hence under anarchy there is no “unlimited right to secede” from just legal arrangements; one has instead a limited right to secede, i.e., a right to secede so long as refrains from behaving in rights-violating ways. Market Anarchism does not include a right to commit aggression and then opt out of all legal frameworks but one’s own. Under anarchy, individuals are treated like sovereign nations; that obviously does not include forswearing defensive violence against them, since sovereign nations have the right to use defensive force against one another.

Of course, as Mr. Bidinotto will be quick to point out, in any society there will inevitably be disagreements as to what counts as a “rights-violating way.” The administrators of the legal system, whether that system is anarchic or minarchic, will periodically disagree as to what rights people have. The question is: under which social arrangement, anarchy or minarchy, will these disputes be most likely to be resolved peacefully and in a manner favourable to individual liberty?

Mr. Bidinotto thinks that Market Anarchism will be chaotic because there’s no agency to serve as “final arbiter.” But under minarchy, isn’t there an analogous problem within the monopoly agency? Unless the government is a dictatorship, there’s no one person in the government who can serve as final arbiter. (This is precisely why 17th-century theorists of royal absolutism, like Thomas Hobbes and Robert Filmer, thought that one-man dictatorship was the only stable form of government.) Nor are government officials characterised by unanimity. Yet most of the time government officials are not waging war against one another. What leads them to resolve their disputes peacefully? Constitutional restraints.

But it is not as mere paper guarantees that constitutional restraints are effective. What matters is institutional structure, with checks and balances and other incentival and informational mechanisms. When minarchists ask what anarchists can rely on to maintain order in an anarchist society, the answer is: the same thing minarchists rely on to maintain order within a minarchic government.

Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Molinari meant when he spoke of “the diffusion of the state within society.”

A “diffused” legal system is preferable on moral grounds because it recognises the equal right of all persons to practice any legitimate profession, and because the alternative – a monopoly government – would necessarily run afoul of the Lockean prohibition on being a judge in one’s own case. A “final arbiter,” i.e. an agency that refuses to submit its use of force to external adjudication, is by definition lawless; thus anarchy is the completion, not the negation, of the rule of law. Anarchy “comes not to destroy but to fulfil the law.”

And a “diffused” system is pragmatically preferable because anarchy multiplies checks and balances. Handing all power over to a single monopoly agency is too risky.

One source of minarchist confusion about Market Anarchism may be a conflation of two different sorts of “monopoly.” A Market Anarchist can certainly think that some rights-claims are correct and others are mistaken, and that agencies acting on correct views have the moral right to defend their clients, by force if necessary, against agencies acting on mistaken views. In that sense, Market Anarchists have no objection to the idea that actions based on correct views of justice have a right to a monopoly against actions based on a mistaken view of justice. What Market Anarchists deny is the further inference that this monopoly is best achieved through a monopoly agency or institution. On the contrary.

Mr. Bidinotto adds some further commentary on his website:

In this time when so many societies are being violently torn asunder by competing gangs of power-seekers, it always amazes me that a small number of educated souls would fall prey to the theoretical seductions of anarchism.

This tendency is unknown to most ordinary folk, who haven’t the time or inclination to indulge in theoretical perversions. But it is an aberration rather common among libertarian rationalists –by which term I mean individuals who employ a kind of deductive reductionism in the place of sound reasoning rooted in empirical fact.
With regard to the opening remark, one could equally well say: “In this time when so many societies are being violently oppressed by governments, it always amazes me that a small number of educated souls would fall prey to the theoretical seductions of governmentalism.”

With regard to the charge of rationalism, I think the empirical case for anarchism has been made, and has not yet been answered. See, for example, the citations here.

In addition to Mr. Bidinotto’s response, I have also heard from Saulius Muliolis, who writes:

I have read your article on market anarchism, as well as Bidinotto’s original essay that you are responding to. I have a question.

You write:

But of course the incentive to violate rights in order to please one’s customers/constituents is going to be present both for the private protection entrepreneur in an anarchic system and for the elected politician in a governmental system. The difference, Bidinotto thinks, is that the elected politician is restrained by “checks and balances” while the private entrepreneur is not. But Bidinotto does not explain why market incentives cannot function as “checks and balances.”
The problem is that you don’t explain how market incentives WOULD function as checks and balances. You are asking Bidinotto to prove a negative. How do you prove the positive?

In the system we have now, if two institutions, such as Congress and the President, disagree on the definitions of concepts like force or property, neither can act. This is a good thing. Such disagreement causes paralysis untill [sic] the issue is resolved, which more often than not will be done in an objective manner. With competing free market agencies, I don’t see how either would be restrained when they differ in opinion on wether [sic] employment is exploitation, and therefore coersion [sic]. (BTW, such a Marxist agency would have an excellent means of covering the costs of coercive action, through expropriation.)

Saulius Muliolis
With regard to the charge that I have not explained “how market incentives WOULD function as checks and balances,” I did that – albeit briefly – in paragraphs 14 through 17 of the post in question. (See the Molinari anarchist resources page for further references.)

Mr. Muliolis says that when Congress and the President “disagree on the definitions of concepts like force or property, neither can act.” This hasn’t always been true. When the Supreme Court declared President Andrew Jackson’s “Trail of Tears” policy unconstitutional, Jackson proceeded with the policy anyway, quipping “[Chief Justice] Marshall has made his decision; now let him enforce it!” The policy of cooperation among the branches of government evolved only gradually (see, e.g., Robert Axelrod’s The Evolution of Cooperation). And when cooperation finally did evolve, it did so in a malignant way, with each branch of government concurring in the expansion of the power of the others. I’ve argued elsewhere that incentives under Market Anarchism would favour benign forms of political cooperation while discouraging malignant ones.

Markets work.

Posted December 26th, 2003



The Crowd Is Untruth

Gangsta Genius, a guerilla creationist lurking somewhere in the crumbling infrastructure of the cosmic unconscious, has written a critique of my Open Letter to the Peace Movement. The Gangsta complains that I shouldn’t be “applauding the ‘efforts’ of all the anti-war protesters” when “85 percent of said protesters advocate socialist, statist intervention in say … 85 percent of our daily lives.”

True enough – but my aim in the Open Letter was to follow Kierkegaard’s advice to preach to the crowd not qua crowd but qua individuals who may be led away from the crowd, “so that one or another individual might go home from the assembly and become a single individual.”

Incidentally, I must disagree with the Gangsta’s contention that George W. Bush is preferable to the Democrats because “in the long run, he will impose a lot less ‘violence’ than a democrat.” In addition to the endless war on “terrorism,” Bush and his Republican majority are giving us massive civil liberties violations (the Patriot Act and its ilk) and massive spending increases (funded by boosted deficits, i.e., tax-hike time bombs). As for socialised healthcare, which the Gangsta rightly regards with horror, the Clintons’ strategic mistake was to try to implement it all at once; the Republicans are implementing the same system, but they’re installing it piecemeal.

The Repugnant and Demagogic parties are equally committed to an escalation of state violence. Look not to that quarter for deliverance.

Posted December 26th, 2003



No, Virginia

Dear Virginia,

I’m sorry to say that Mr. Church has fashioned an
evasive reply to your question. Rather than giving you an honest yes or an honest no, he has delivered himself of a murky circumlocutory no disguised as a yes. What all his verbiage is trying to say is that Santa Claus exists only metaphorically and not literally. But of course you weren’t asking whether Santa Claus exists metaphorically. You wanted to know whether there really is a Santa Claus.

Virginia, your little friends are right. There is no Santa Claus.

Don’t take my word for it, though. Your father may believe that “if you see it in The Sun it’s so,” but the truth is that no authoritative text is infallible. Including this one. Go investigate, and find out for yourself.

And when you discover, as you will, that Santa Claus doesn’t exist, don’t be too harsh on your parents for deceiving you. They were probably deceived in the same way by their own parents. Nothing is harder than to turn a critical eye on practices that everyone takes for granted.

But when you grow up, if you have children of your own, don’t tell them that Santa Claus exists. Because he doesn’t.

Roderick T. Long

P.S. – Along the way, Mr. Church confuses the absurd denial of things imperceptible with the entirely sane denial of things unintelligible. Of course there are things we cannot see or hear or touch; we have excellent evidence for their existence. But it makes no sense to affirm the existence of things unintelligible, because whatever is unintelligible is outside the space of reasons, and whatever is outside the space of reasons cannot be so much as referred to. Calling man “a mere insect, an ant, in his intellect” doesn’t change that.

P.P.S. – Many modern versions of Mr. Church’s letter have been “corrected” by someone who apparently thinks the line “They do not believe except they see” is ungrammatical. It is not.

P.P.P.S. – Merry Christmas!

Posted December 25th, 2003



Seasonal Roundup

Posted December 24th, 2003



Credo Quia Absurdum

The following letter appeared in this morning’s Opelika-Auburn News:

To the Editor:

Do the lyrics to the Christmas carol “Twelve Days of Christmas” really contain a hidden Catholic catechism designed to escape the watchful eyes – or ears, I guess – of Protestant censors under King Henry VIII?

 Henry VIII Why would Catholics have to hide references to the Beatitudes, the Commandments, and so forth in a song in order to escape persecution from Protestants? Don’t Protestants believe in the Beatitudes and the Commandments too? There’s nothing specifically Catholic in the proposed interpretation of the song – nothing an alleged Protestant censor would have any reason to object to.

I wonder why the Opelika-Auburn News (12/20/03) would devote an entire half-page to a story that even its proponents admit has no basis in fact? Dennis Bratcher is quoted as saying that although “there is no substantial evidence to demonstrate the story,” there is also “no ‘substantive evidence’ that will disprove it either,” and so people should feel free to believe it if it makes them feel good; “historical accuracy,” he adds, “is not really the point.”

Such indifference to truth evinces a frighteningly irresponsible attitude toward the obligations associated with belief-formation. If I’m ever accused of a crime, I certainly hope Bratcher isn’t on the jury. Might he decide that although there’s no proof that I’m guilty, there’s also no proof that I’m not guilty, so he can declare me guilty if he feels so moved?

There are no historical grounds for freighting down the cheerful and innocent song “Twelve Days of Christmas” with the dark legacy of persecution and religious conflict. The real historical utility of the song is to remind us that Christmas was originally a twelve-day festival – from the evening of December 25 through the day of January 6 – and not merely a single day.

Roderick T. Long

[Note added 10/22/04: For Bratcher’s rebuttal see here.]

Posted December 24th, 2003



Vae Victis

[Cross-posted at Liberty & Power]

Who should try Saddam Hussein?

The Nuremberg trials have had both a positive and a negative legacy. The positive legacy is the affirmation of a higher moral standard to which government rulers are subject and in the name of which they can be called to accouint. But the negative legacy is the notion that the vanquished may legitimately be tried by the victor.

 John Locke As John Locke famously pointed out, no one can be trusted to be a judge in his own case. Thus, apart from emergency situations when instant action must be taken, plaintiffs should submit their grievances to a third-party arbiter.

(Locke further takes this principle to support the establishment of a single monopoly arbiter. Of course it does no such thing. The inference from All disputes should be submitted to a third-party arbiter to There should be a third-party arbiter to whom all disputes are submitted is no more legitimate than would be the inference from Everyone likes at least one TV show to There’s at least one TV show that everyone likes. In fact Locke’s principle rules out a single monopoly arbiter – for a single monopoly arbiter would have to be a judge in its own case in any dispute to which it was a party.)

Locke’s principle obviously rules out a trial by the U.S. – especially since the U.S. president has already called for Hussein’s execution, thus nullifying any semblance of a fair trial. But it equally rules out the legitimacy of having the new Iraqi government try Hussein. (I say “Hussein” rather than “Saddam” because I am not on a first-name basis with the man; I’m not sure why everybody else seems to be.) The problem is not just that any Iraqi tribunal is likely to be a U.S. puppet (though that is certainly an obvious concern). Even if the U.S. had no influence on the Iraqi government at all, as long as Hussein is being accused, not of crimes against selected individuals, but of crimes against the Iraqi people as a whole, a government purportedly representing the entire Iraqi people cannot legitimately try him, since by doing so they would be acting as judges in their own case.

The only legitimate course of action would be for both the U.S. government and the Iraqi government to recuse themselves and hand Hussein over to a genuinely independent tribunal.

Don’t hold your breath.

Posted December 22nd, 2003



Lawless Ruler Still at Large

At a Cabinet meeting on December 11th, President Bush was asked whether U.S. policy in occupied Iraq is in compliance with international law. Bush responded with a quip: “International law? ... I don’t know what you’re talking about by international law. I better consult my lawyer.”

Bush’s insouciance over international law evinces an evidently inexhaustible hypocrisy. This is the same President who cited Saddam Hussein’s violations of international law to justify the U.S. invasion of Iraq. Apparently Bush regards international law as a weighty and serious matter when it constrains his enemies, but not when it constrains him.

This hypocrisy on Bush’s part is nothing new. In the weeks leading up to the invasion, he was simultaneously fulminating over Hussein’s perfidy in disregarding U.N. authority – and blithely disregarding U.N. authority himself.

I could respect (grudgingly) a President who disregarded U.N. authority consistently, in the name of national sovereignty. I could likewise respect (again grudgingly) a President who upheld U.N. authority consistently, in the name of international peace. But the Bush double standard is beneath contempt.

It’s no surprise, then, that the Bush administration, which expressed outrage when Iraq violated the Geneva Convention in its treatment of POWs, is already violating precisely the same provisions in its treatment of the captured Hussein. But then, it’s been violating those provisions with regard to the Guantanamo Bay POWs for some time in any case. It’s difficult to avoid the conclusion that George W. Bush recognises no authority beyond his own will.

(Does that mean Bush is, like, the new Max Stirner? Um, no.)

Posted December 15th, 2003



Jus in Bello

[Cross-posted at Liberty & Power]

I have a problem with both sides in the debate over Lt. Col. Allen West.

West’s defenders say his actions were justified because they resulted in information that helped to avert an attack on his unit. Let’s think what that means. If such a defense is correct, then why should it apply solely in this particular case? Wouldn’t it follow that torturing prisoners of war is justified whenever it might result in information that could prevent an enemy attack? (And if you think beating a bound prisoner and discharging a gun near his head isn’t torture, ask yourself whether you’d feel the same way if Iraqis had done it to an American soldier instead of vice versa.)

Are we really prepared to toss out the window this most basic protection for POWs, this hard-won victory of the party of civilisation over the party of barbarism? If so, to what principle can we appeal when our own soldiers receive abuse from enemy captors?

Those who defend such conduct are fond of saying “This is war!” – as though this were some sort of unanswerable, blanket license for suspending the requirements of morality. But if folks in the inter arma silent leges crowd really do regard morality as a mere human contrivance, to be discarded whenever it grows inconvenient, the self-righteous moralising tone of their pronouncements seems a bit incongruous.

But I have a problem with many of West’s critics as well. What West did was wrong, but there’s little justice in letting punishment fall on him while giving a pass to the authorities who put him in such an untenable position in the first place. (And the Army’s weaselly treatment of West, threatening to prosecute him not for what he did but for refusing to resign meekly and quietly, has been inexcusable.) When arrogant princes like Bush and Cheney, who have presided over countless bombings of innocent civilians, hang someone like West out to dry for a far lesser crime, it’s hard to feel anything but disgust.

Posted December 11th, 2003



Horizontally Speaking

During the 17th and 18th centuries, and most of the 19th, the two main political factions in most Western countries – whether they went by the names “Whigs” and “Tories,” liberali and servili, or something else – defended positions in the libertarian and authoritarian quadrants of the Nolan Chart. One favoured individual freedom more or less across the board; the other favoured hierarchy and regimentation more or less across the board.

Nowadays, of course, the two main political factions in these countries represent the other two quadrants of the Nolan Chart, with left-wingers favouring (on the whole) more “personal” freedom and less “economic” freedom, and right-wingers favouring (on the whole) the reverse. In terms of those versions of the Nolan Chart that flip it onto its authoritarian corner, the “horizontal” political spectrum has displaced the classical “vertical” one. Those still favouring positions aligned with the vertical spectrum are relegated to the political fringe.

And yet, according to research published in William Maddox and Stuart Lilie’s book Beyond Liberal and Conservative: Reassessing the Political Spectrum, the American public is divided roughly evenly into the Nolan Chart’s four quadrants. (Whether similar statistics hold for other Western countries I don’t know.) So the electorate, as it is currently constituted, could sustain a vertically aligned two-party system just as easily as a horizontally aligned one. Which raises* the question: why, in that case, does the horizontally aligned system predominate?

The answer, I think, is that the horizontally aligned two-party system serves a function. The vertically aligned system is dangerous to the State, since it involves a powerful role for a party committed to serious restraints on State power. The horizontally aligned system, by contrast, allows the State to grow indefinitely in power. While each party favours a reduction of state power in some area, it also favours an expansion in some other area, and the needs of expansion put a brake on the extent to which the reduction can be successful. Thus each party, even if it accomplishes reductions in government power in some area, invariably ends up increasing government power on balance. That’s why alternating Democratic and Republican administrations over the course of the past century, which might have been expected simply to undo one another’s policies turn by turn, have in fact presided over a consistent expansion of the State. And each party can of course appeal to voters in its two neighbouring quadrants by emphasising either its libertarian or its authoritarian aspects as need be – offering, in Rand’s apt phrase, “poison as food and poison as antidote.”

Am I suggesting that the dominance of the horizontal spectrum over the vertical one is the result of a deliberate conspiracy? Not at all. I think it’s the natural result of political incentives. Suppose you’re a political office-holder. You want to stand for freedom – both to look good to the voters and to convince yourself you’re a good person. But it’s fun wielding political power and you don’t want to give it up. You will unconsciously find yourself most drawn to, most comfortable with, an ideology that allows you to claim plausibly to be a champion of freedom while at the same time not seriously giving up much power. Hence even if the electorate is distributed evenly throughout all four quadrants, it’s only to be expected that politicians, bureaucrats, and the political class generally would tend to cluster in the left and right quadrants only. It’s also to be expected that politicians, unlike their rank-and-file constituents, would tend to offer more lip service to the freedom aspects and more practical support to the anti-freedom aspects.

I’m not offering this as an explanation of how left-wing and right-wing ideologies emerged in the first place; that’s a complicated historical question. But given the distribution of the electorate in all four quadrants, what I am offering is a (partial) explanation of why our political party system does not reflect this quadrant-diversity.

* And I do mean “raises,” not “begs.” A lot of people nowadays use the phrase “begs the question” as if it meant “raises the question,” or perhaps “raises the question in an especially urgent manner.” They’re wrong. To beg the question is to commit the fallacy of relying on the assumption of a proposition’s truth in the course of trying to prove it.

Posted December 11th, 2003



Another Molinari Institute Update

There’ve been several updates on the Molinari Institute’s news page lately. Nothing earthshaking (yet!), but check it out.

We expect to be announcing some exciting developments soon.

So watch this space.

Posted December 10th, 2003



Prize of War

[cross-posted at Liberty & Power]

A lot of people were outraged when Yasser Arafat won the Nobel Peace Prize in 1994 – a choice which people are still protesting.

I’m no fan of Arafat, but look at the list of folks he shares that dubious honour with. There are certainly some good people on that list (including, I believe, the only libertarian: French economist Frédéric Passy, recipient of the very first prize in 1901, and perhaps the only person ever to accuse Gustave de Molinari of not being sufficiently libertarian!), but it also includes such pestilent warmongers as:

Theodore Roosevelt – 1906
Woodrow Wilson – 1919
Henry Kissinger – 1973
Mikhail Gorbachev – 1990
As far as I’m concerned, the Nobel Peace Prize became meaningless as of 1906. Arafat is welcome to it.

Posted December 8th, 2003



Even More Thoroughly Modern Ayn

My Free Radical article “Two Cheers for Modernity,” about which I’ve blogged previously, has been reposted in an improved format on SOLO, along with a section for reader feedback. Why don’t you go there right now and give me some feedback? No excuses, puny human!

Posted December 7th, 2003



Anarchism as Constitutionalism: A Reply to Bidinotto

I was recently pointed to, or reminded of, Robert J. Bidinotto’s article The Contradiction in Anarchism. The article is nearly a decade old, so I don’t know whether Bidinotto still stands by everything in it; but his criticisms of Market Anarchism are nonetheless worth addressing.

Bidinotto contrasts Market Anarchism unfavourably with constitutionally limited government. Because “conflicting philosophies will lead to conflicting interpretations of the meaning of such basic terms as ‘aggression,’ ‘self-defense,’ ‘property,’ ‘rights,’ ‘justice,’ and ‘liberty,’” Bidinotto argues, it follows that while Market Anarchists may “believe that they are merely advocating ‘competition’ in the protection of rights,” their system would in practice involve ‘competition’ in defining what ‘rights’ are.” Under limited government, the acts of private agents “are limited by the government,” while “government agents themselves are limited by the Constitution.” By contrast, under Market Anarchism, “no private company would deliberately handcuff itself, with separations and divisions of powers, and checks and balances.” Given consumer sovereignty, the rulers of society under Market Anarchism would be the “same guys who rule it now,” brought to power “by the same popular constituency that now elects them”; but under Market Anarchism, by contrast with limited government, “there’d be no institutional limits on their behavior.”

I agree with Bidinotto that the use of force needs to be governed by constitutional restraints. But I suspect he’s being misled by a metaphysically illusive picture of what constitutional restraints are and how they work.

First of all, when we speak of constitutional restraints we are presumably not talking merely of restrictions written into a legal document. Such paper prohibitions are neither necessary (look at Britain) nor sufficient (look at Soviet Russia) for actually operative restraints. What matters is a nation’s “constitution” in the original sense of the actual institutions, practices, and incentive structures that are in place.

But a constitution in that sense has no existence independent of the actual behaviour and interactions of actual human beings. The metaphysical illusion I referred to is the habit of thinking of “separations and divisions of powers, and checks and balances,” as though these structures existed in their own right, as external limitations on society as a whole. But in fact those structures exist only insofar as they are continually maintained in existence by human agents acting in certain systematic ways. A constitution is not some impersonal, miraculously self-enforcing robot. It’s an ongoing pattern of behaviour, and it persists only so long as human agents continue to conform to that pattern in their actions.

Since human beings have free will, no social pattern of behaviour can be automatically self-perpetuating; nothing whose survival depends on the choices of free agents can be guaranteed to survive. (Hence Bidinotto’s dismissal of the Icelandic experience with a competitive legal system on the grounds that it “didn’t last” and so must have lacked “viability” is off the mark – to say nothing of the fact that Iceland’s stateless period lasted successfully for over three centuries, which is a lot longer than the United States has lasted so far.) But such social patterns can be more or less likely to survive. A way of interacting that tends, by and large, to give most of the people participating in it an incentive to keep interacting in that way is more likely to survive than one that does not.

The constitution of a free society, then, needs to be a pattern of interaction in which people act – and in so doing give themselves and/or one another an incentive to keep acting – in ways that tend to maintain freedom. Market Anarchists and proponents of limited government both claim to be offering such a pattern. The choice between government and anarchy, then, is not a choice between having a constitution and not having one; it is a choice between two different constitutions. Far from eschewing “separations and divisions of powers, and checks and balances,” Market Anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system. As I’ve written elsewhere, despite the best intentions of those who framed the U.S. Constitution’s checks-and-balances system “there has been sufficient convergence of interests among the three branches that, despite occasional squabbles over details, each branch has been complicit with the others in expanding the power of the central government. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.”

Anarchy thus represents the extension, not the negation, of constitutionalism. As Gustave de Molinari, the founder of Market Anarchism, wrote in his 1884 work Political Evolution and Revolution: “The future will bring neither the absorption of society by the state, as the communists and collectivists believe, nor the suppression of the state which is the dream of the [non-market] anarchists and nihilists. It will bring the diffusion of the state within society.” (This quotation incidentally shows how to answer Chris Sciabarra’s charge that Market Anarchism posits an untenable “dualism” between society and government. Rather a Hegelian synthesis!)

Bidinotto thinks that legal services cannot be supplied on the market because a functioning market presupposes a functioning legal order; hence government is a “a precondition of the market.” Now it is true that a functioning market requires a functioning legal order; but it is equally true that a functioning legal order requires a functioning market. This is obviously true if the legal order is Market Anarchism; but it is no less true when the legal order is a government. As Anthony de Jasay has recently pointed out, states can arise only in societies wealthy and orderly enough to maintain them. Hence a state cannot exist unless there is a functioning economy of some sort. (Anarchists take this to show that the state is a parasite on productive activity; the most the minarchist can claim is that it is a luxury good.) In any case, a functioning market and a functioning legal order arise together; it’s not as though one shows up on the scene first and then paves the way for the other. To think otherwise is to fall once more into the metaphysical illusion that economic activity takes place against the background of a legal framework whose existence is somehow independent of the activity it constrains.

Bidinotto complains, as we’ve seen, that competing providers of legal services in an anarchic order will have conflicting interpretations of justice. No doubt they will. But how is this different from the system he favours? The whole point of having a checks-and-balances system presupposes that the agents who administer the system will have conflicting interpretations of justice. There’s be no point in having distinct branches of government limiting each other, or having the people limit the government through the franchise, if unanimity on questions of justice could be expected. In both Market Anarchism and limited government, then, the working of the system will involve different parties trying to enact their several conceptions of justice. The best system is not one that eliminates such conflict – no system can eliminate it – but one that does the best job of providing its constituent agents with an incentive to resolve their disputes a) peacefully, and b) in a manner favourable to individual liberty. The question is: which does a better job of this – markets or governments?

In response to the Market Anarchist claim that private agencies would be led by market incentives to resolve disputes peacefully rather than violently, Bidinotto counters: “What about a reputation for customer satisfaction – and the profits that go with getting results?” But of course the incentive to violate rights in order to please one’s customers/constituents is going to be present both for the private protection entrepreneur in an anarchic system and for the elected politician in a governmental system. The difference, Bidinotto thinks, is that the elected politician is restrained by “checks and balances” while the private entrepreneur is not. But Bidinotto does not explain why market incentives cannot function as “checks and balances.”

Bidinotto hopes to discredit Market Anarchism by portraying “Bosnia, Somalia, Beirut, Northern Ireland, South Africa and ... American inner cities” as real-life examples of societies with “competing protection agencies.” The examples seem ill-chosen, however, since in all the cases he mentions the social chaos is the result of government policies. (With regard to Somalia, for example, the civil war broke out primarily in those parts of the country that had been under the central government before its collapse; the rival gangs were fighting over which of them was to be the new government. Meanwhile, the parts of the country that had never fallen under government control, but had been living under an anarchist legal order since time immemorial, remained relatively peaceful.)

In any case, trying to refute anarchism by pointing to undesirable instances of anarchy is about as bad an argument as trying to refute Bidinotto’s advocacy of government by pointing to the Soviet Union or Nazi Germany. Whether a state is horrendous or decent depends in large part on its constitutional structure; whether an anarchic society is horrendous or decent likewise depends on its constitutional structure. Because he apparently does not see that an anarchic society can have a constitutional structure, Bidionotto does not realise that anarchies can differ in constitutional structure just as states can. But the historical record clearly shows that anarchies can come in peaceful and productive forms, not just violent ones.

What guarantees that private entrepreneurs under Market Anarchism will not behave in tyrannical and abusive ways? The answer, of course, is that nothing “guarantees” it, just as nothing “guarantees” that governmental politicians will not behave likewise. But under which system is such behaviour most likely to be restrained? The superiority of anarchy over government here lies in the fact that under government the tie between the decision to commit aggression and the cost of that aggression is far weaker than under Market Anarchism. Under a governmental system, the cost of state policies leading to war is borne by taxpayers and conscripts, not by the politicians who crafted those policies. Under Market Anarchism, by contrast, agencies who resolve disputes through violence rather than arbitration will have to charge higher premiums and will thus lose customers. A government can’t lose “customers” (taxpayers) unless they take the drastic step of moving to a new country; by contrast, switching protection agencies would be as easy as switching long distance service. The proper response to Bidinotto’s challenge “If the ‘demand’ for peace is paramount, please explain the bloody history of the world” is: the bloody history of the world is the result of governments buying war at less than the market price by shifting the costs to their subjects.

Similar reasoning applies to Bidinotto’s worries about each special interest group hiring its own protection agency. Under the governmental system, special interest groups don’t have to pay the full costs of their policies; they get politicians to fund their schemes out of the general tax base. It’s relatively costless for special interests to demand that government impose their particular values on society. But suppose that, under Market Anarchism, when you get your monthly bill from Acme Security Company, you see that you’re paying $X for “basic service” (protection against force and fraud) and $Y for “premium service” (snooping on your neighbours to make sure that they’re not taking drugs or having abortions or playing violent video games). The number of bigots who would be willing to pay to have their own values forcibly imposed is bound to be smaller than the number of bigots who merely advocate such imposition. Talk is cheap. And the few fanatics who are willing to put their money where their mouth is would be easier to deal with under anarchy; you can’t arrest people who lobby for government-imposed aggression, but you can arrest people who aggress.

It’s true that people living under anarchy might disagree about the definition of aggression. But if two security agencies disagree about how exactly to define property rights in some particular case, they can fight it out – thus sending their costs through the roof and their customers to the nearest competitor – or they can resolve their dispute through peaceful arbitration, thus keeping their costs low and their customers happy. (Governments resort to force far more often, since they don’t have to worry so much about losing customers. Though it’s worth noting that even governments interact peacefully most of the time, even though they face an artificially low cost of war. Private security agencies, which would have to buy at the market price, would choose war even less often.)

So disputes are likely to be resolved peacefully. But how likely are they to be resolved correctly? Admittedly nothing guarantees this. But a) a competitive court system is more likely to be information-generating than a top-down legislative system, for familiar Hayekian reasons; and b) since aggression is costlier than non-aggression, the dispute-resolution will tend to favour laws with a broadly libertarian content.

Bidinotto advises us to recall “what Adam Smith had to say about businessmen.” What Smith had to say, of course, was that “people of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public.” Smith’s meaning was that businessmen are constantly running to government for favours, trying to get subsidies or protectionist legislation. And as Smith looked around him, he saw that generally they succeeded. Though he campaigned tirelessly for free trade, he did not expect to succeed; “to expect,” he wrote, “that the freedom of trade should ever be entirely restored in Great Britain, is as absurd as to expect that an Oceana or Utopia should ever be established in it.” Smith rightly saw government as the malign tool of wealthy private interests rather than a fence against them.

That is not to say that there is no reason to worry about the power of the wealthy in a Market Anarchist society; I’ve written at length about the dangers, and possible solutions to them, in my article “Toward a Libertarian Theory of Class” (Social Philosophy & Policy 15, no. 2 (Summer 1998). But the notion that the danger of plutocracy is less under government is hard to believe. As I’ve written elsewhere:

Indeed, government magnifies the power of the rich. Suppose I’m an evil billionaire, and I want to achieve some goal X that costs one million dollars. Under a free-market system, I have to cough up one million of my own dollars in order to achieve ths goal. But when there’s a powerful government in charge, I can (directly or indirectly) bribe some politicans with a few thousands in order to achieve my million-dollar goal X. Since the politicians are paying for X with tax money rather than out of their own pocket, they lose nothing by this deal.
Market Anarchists have often pointed out that market incentives would tend to favour a harmonisation of legal standards across society. But for Bidinotto this simply amounts to a re-emergence of the monopoly state: if “a group of agencies decides to impose a mutually-agreed-upon framework on everyone,” then “no one would be allowed to ignore or secede from the verdict imposed by the majority of agencies,” and so the legal system is no longer a competitive one. This seems false. First, the common framework need not be imposed by force; it may come about simply because agencies whose policies are incompatible with the majority system will lose customers, going the way of Betamax. Second, even if the common framework is imposed by force, what’s required is a set of standards, not a set of institutions. If there are no barriers to entry – if a new security agency can start up any time – how is the system not competitive? (Those interested in the question of how a cooperative network of security agencies differs from a state should consult Bryan Caplan’s article on this topic.)

When one person uses force against another, Bidinotto observes, “it’s rarely self-evident who is the victim, and who the victimizer”; but since “maintaining a functioning society requires that the rest of us determine who is at fault, so that our rights will be protected and justice maintained,” it follows that “it is no ‘violation of rights’ to require individuals to submit to an objective process to justify, publicly, their uses of force.”

Bidinotto’s point here is well-taken. But what does it have to do with arguing against Market Anarchism? Why couldn’t an anarchic legal order likewise require that individuals “submit to an objective process to justify, publicly, their uses of force”? The voluminous historical evidence (which Bidinotto inexplicably dismisses) indicates that anarchic legal systems have traditionally done precisely this. (If the worry is that only a monopolistic system could be “objective,” see my previous argument to the contrary.)

While Bidonotto acknowledges a “right to respond forcefully in immediate defense of one’s life and values against aggression,” he insists that “after-the-fact forceful responses are illegitimate, and must be left to an objective, impartial agency.” I think he has a good point here. But again, it’s unclear why he thinks this point tells against Market Anarchism – unless he’s erroneously inferring from “Each person must delegate retaliation to an impartial third party” to “There must be an impartial third party to whom each person delegates retaliation.” (That would be an example of the fallacy of composition, wherein one infers from, e.g., “Everyone likes at least one TV show” to “There’s at least one TV show that everyone likes.”)

Let me end with a note of protest against Bidinotto’s claim that Lysander Spooner’s argument that we never signed the Constitution is irrelevant, because the Constitution is a limitation on the federal government, not on us. Bidinotto’s critique drops the historical context: a war had just been waged to prevent the South from seceding, so obviously the Constitution was being interpreted as a constraint on parties other than the federal government.

For more on Market Anarchism, see the Molinari Institute page

Posted December 7th, 2003



Downsizing the Commandments

The following letter appeared in this morning’s Opelika-Auburn News:

To the Editor:

Ed Zeman (December 1st) says, apparently with reference to the Ten Commandments case, that the First Amendment to the U.S. Constitution doesn’t establish a “separation of church and state.”

I think it does, when taken in conjunction with the Fourteenth Amendment.

But whether it does or not, we don’t even need to appeal to the U.S. Constitution, because the Ten Commandments monument was in clear violation of the Alabama Constitution, which reads in part:

“That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship ....”
Erecting a specifically Judeo-Christian monument on State property obviously gives “preference” to some sects over others. It also effectively transforms the courthouse into a place of worship – a courthouse which is maintained by taxes, and which people are often “compelled by law to attend.”

As a libertarian, I agree with Mr. Zeman that the only proper function of law is to prevent “violation of property or assaults.” That is precisely why the Ten Commandments monument is illegitimate. Only three of the Ten Commandments – the prohibitions against killing, stealing, and false witness – are concerned with “violation of property or assaults.” Hence only those three commandments are government’s proper concern (because of their content, not their religious origin). The other seven are matters of private morality and are not the business of government.

When government oversteps its natural boundary and begins promoting a particular religion, instead of confining itself to preventing “violation of property or assaults,” it becomes tyrannical.

Roderick T. Long
Thanks to Charles Johnson’s post Theocracy No Moore for the pointer to the relevant section of the Alabama Constitution. (Charles also has a post pointing out the dialectical implications of my Platonic Anarchism argument from last week.)

Two points of clarification:

a) When I say that false witness counts as a form of assault, I don’t mean lying in general, but specifically the false accusation of a crime – something that sets the wheels of the legal system in motion against an innocent person. (I originally explained this in the letter but had to cut it to get under the word limit.) Mere libel or slander, when it doesn’t summon the forces of legal coercion, I regard as free expression rather than assault.

b) In the context of this letter, by “government” I mean a legal system, not the specific institution of the State. As an anarchist I obviously don’t believe that the State has any “proper concerns.”

Related Discussions:

My earlier post on the Ten Commandments monument
My earlier post on constitutional interpretation
Lysander Spooner on the distinction between vices and crimes
The author of the Ten Commandments on the institution of the State

Posted December 4th, 2003



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