by
Murray
N. Rothbard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus, William
C. Wooldridge has written that

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

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

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

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

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

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

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

Thus, the Tannehills
emphasize:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes

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

[2]
Ibid., pp. 103–104.

[3]
Ibid., pp. 95–96.

[4]
Ibid., pp. 100–101.

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

[6]
Ibid., p. 68.

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

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

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

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