Wednesday, December 2, 2009

Can a Libertarian Also Be a Conservative?

For interested readers, here’s the text of my (unsuccessful) submission to this year’s Chris R. Tame Memorial Prize essay contest.

* * * * *


I

Depending on the meaning of conservative, it may be that a libertarian should be a conservative, that a libertarian might be a conservative, or that a libertarian should not be a conservative.

A libertarian, I take it, is someone who is for liberty and against aggression. The libertarian doesn’t like to be pushed around, and doesn’t like to see other people pushed around, either. The libertarian will likely affirm some version of what I will call the libertarian principle, and will have good reason as well to embrace the libertarian ideal.

In its strongest form, the libertarian principle holds that someone may rightly use force against the person or property of another only to prevent or end an unjust attack or to secure compensation for the damage done by such an attack. On weaker versions, the initiation of force, while infrequently permissible, must meet very demanding requirements.

The libertarian ideal calls for real freedom in all aspects of life. The libertarian need not, and likely will not, suppose that just any action that does not involve the misuse of force is morally reasonable. Conduct that is not aggressive can, and frequently does, amount to the mistreatment of others. Often, this mistreatment will reduce their freedom to make choices about their own lives. Someone motivated by the libertarian ideal will challenge such mistreatment even while granting that it may be narrowly consistent with the libertarian principle and may not reasonably be met with the use of force.

II

Whether a libertarian can or should be a conservative will depend on what a conservative is. I consider ten sorts of conservative here—the traditionalist, the organicist, the fallibilist, the localist, the hierarchicalist, the culturalist, the fundamentalist, the constable, the marketeer, and the warrior.

For the traditionalist, reasoned discourse is embedded in a tradition. We all start somewhere; we’re always already on the way. There is no way to avoid beginning with the intellectual inheritance we receive from parents and teachers, friends and neighbors, churches and synagogues, books and films. And there is, in addition, good reason to take it seriously: inherited convictions have already been sifted; there has been considerable opportunity to assess their significance and implications. Being a traditionalist doesn’t mean ignoring challenges to tradition, nor does it require the unrealistic assumption that traditions are hermetically sealed and clearly demarcated. The traditionalist can perfectly well engage in potentially transformative critique. But the traditionalist’s critique won’t proceed from the assumption that intellectual activity can avoid beginning somewhere.

By an organicist, I mean someone who thinks that a society or community is more like an organism than it is like a machine and who is consequently doubtful that societal problems can reasonably be understood as engineering puzzles to be resolved using technical expertise. The organicist is deeply suspicious of the view that deliberate planning is an effective way to promote a community’s flourishing, doubting that any rational decision-maker possesses, or could possess, the knowledge and skill required to do a better job at structuring social institutions than the generations of people who have slowly shaped and reshaped those institutions. The organicist maintains that the social world created by the winnowed wisdom of the past deserves far more respect than any utopia constructed by the deracinated intellect of a would-be rational planner.

The fallibilist’s emphasis is not on the preservation of hallowed social institutions but on the value of distributed knowledge. The fallibilist doubts that any one actor knows or could know all the things known by all the members of a society. Like the organicist, the fallibilist emphasizes the planner’s fallibility—but, in this case, not as a reason to preserve, say, the church or the monarchy, but rather as a reason to leave people’s voluntary interactions alone.

For the localist, a sense of place is a vital component of human flourishing. The kind of intimate knowledge of one’s roots and one’s companions offered by links with a particular place enables one to live a genuinely human life. And local institutions operate on a human scale, permitting people to make decisions about matters they actually have some chance of comprehending and allowing individual voices to be heard and to make a difference.

The hierarchicalist supposes that people flourish in ordered relationships of authority, deference, and mutual responsibility. On the hierarchicalist’s view, the existence and maintenance of social rank acknowledges the differences in ability, temperament, and training that actually obtain among people in any society. Everyone benefits when those equipped to command do so and when those suited to be followers understand and accept their places in the order of things.

The culturalist believes in the objective superiority of the intellectual, scientific, literary, æsthetic, and political convictions and products of a particular cultural tradition—practically speaking, almost always his or her own. People in all cultures ought to acknowledge the preeminence of these convictions and products, and attempts to downplay their importance—by arguing for the influence of gender bias on science, urging the inclusion of texts by authors from marginalized groups in the literary canon, or seeking to render educational curricula multicultural—should be rejected as prejudiced attacks on reason and objective value.

The fundamentalist seeks to preserve a set of religiously inspired norms of right conduct. These often concern family, gender, and sexuality, but they may also have to do with criminal punishment, military strength, or existing patterns of ownership which are thought to enjoy divine sanction. From the perspective of the fundamentalist, these norms are worth conserving through the use of force and social pressure because their value has been revealed (and perhaps because respecting them has been commanded) by God (or an equivalent source of supernatural sanction).

The constable is horrified by the sense that the bonds and norms sustaining a civilized society are rapidly dissolving, and thus aggressively supports the maintenance of ‘law and order’. Fearing disorder, the constable is quite prepared to use whatever means seem necessary to suppress rioters and the violent, but also those whose unconventional behavior—drug use, say, or sexual non-conformity—seems to threaten established boundaries and practices. The constable rejects as naïve and sentimental the attempt to explain misconduct as the result of social rather than individual pathology and challenges as unfair to actual and potential victims, and to all those supportive of social order, attempts to refashion the criminal justice system in ways that enhance the legal rights of criminal suspects. The constable is suspicious of individual rights of self-defense because they undercut the power of the authorities to maintain order. And the constable insists on the merits of retribution and deterrence as central goals of the legal system.

The marketeer seeks to conserve a sphere of economic life that is free from the intrusion of the state, one in which hard work is rewarded and the strong and capable are acknowledged for their skills and gifts. The marketeer resents the state’s incursion into a formerly autonomous region of society and regards much of this incursion not only as inept and restrictive of freedom but as involving the objectionable coddling of the weak and lazy.

The warrior’s primary concern is the establishment and maintenance of strong internal and external defenses against threatened attacks by alien forces. The enemies with whom the warrior is concerned may vary: they may be Communists or jihadists, for instance. Whoever they are, however, the warrior is committed both to deterring and defeating them militarily and to preventing their insidious infiltration and subversion from undermining the institutions of the warrior’s society. This commitment characteristically entails support not only for substantial military spending by the state (and often the active employment of military force to threaten or attack the foe of the day) but also for the use of heightened surveillance, limitations on the procedural protections available to those suspected of terrorism or espionage, the use of torture, restraints on speech and assembly, and other changes in law and policy the warrior regards as necessary to defeat the enemy.

III

No doubt one person may be both a localist and a constable, a traditionalist and a warrior. There is nothing mutually exclusive about these categories. But it is useful to distinguish diverse strands of conservatism, some of which are, and some of which are not, compatible with the libertarian principle and the libertarian ideal.

The libertarian can quite comfortably identify as a traditionalist. Traditionalism is essentially a thesis about epistemology, and accepting the libertarian principle and the libertarian ideal is surely quite compatible with endorsing this thesis: the libertarian can (but need not) maintain without contradiction or tension that a rational argument must begin from within some tradition or other.

The libertarian can also be an organicist. Support for established social institutions can be quite consistent with the libertarian principle, provided they do not maintain themselves using aggression. Whether it is also compatible with the libertarian ideal is another matter. The ideal will obviously be incompatible with support for established institutions that restrict freedom in one way or another without using force—that limit people’s employment opportunities because of ethnicity or sexual orientation, that constrain marriage partners on the basis of religion. But it will pose no barrier to accepting others which do not limit freedom or which enhance it.

The libertarian certainly may, and almost certainly should, be a fallibilist. The truth of fallibilism provides one of the strongest arguments for the libertarian principle and the libertarian ideal alike.

Localism is certainly consistent with both the libertarian principle and the libertarian ideal. There is nothing about supporting geographically localized institutions and communities that violates the principle. And support for such institutions and communities need not run counter to the ideal—indeed, it can help to foster freedom by safeguarding and extending structures that make it easier for people to control their own lives. But a larger, more cosmopolitan, anonymous environment may offer some people much greater freedom to shape their own identities and relationships than a relatively self-contained community in which behavior is closely monitored and conformity is enforced. The libertarian ideal does not rule out localism, but it disposes the libertarian who embraces it to regard some varieties of localism, which value small-scale communities precisely because they can (or without regard to the fact that they do) enforce conformity and exclude or regulate various sorts of minority groups, with well-deserved suspicion.

Purely voluntary social hierarchies are narrowly compatible with the libertarian principle: if people want to defer to others, the libertarian will say, no one has any business using force to stop them from doing so. But preserving the constraints on freedom created by hierarchies will be inconsistent with the libertarian ideal; people who own this ideal cannot be hierarchicalists.

In addition, though it does not justify regarding genuinely voluntary hierarchies themselves as unjust, the libertarian principle will certainly provide good reason to challenge injustices that leave people with few choices in the real world apart from the acceptance of hierarchical conditions. The violent dispossession of smallholders and the arbitrary use of state power to provide land grants to hierarchs or their ancestors create conditions in which force may or may not currently be necessary to sustain hierarchical institutions and behavior patterns; but the forcible nature of the events making possible those institutions and patterns clearly calls into question the justice of current conditions, and thus their compatibility with the libertarian principle. Of course, it is doubtful that many, if any, actually existing hierarchical societies are even currently voluntary: the threat of state and private violence clearly helps to maintain deferential attitudes and behaviors; the libertarian principle certainly calls for libertarians to reject hierarchicalism in these societies.

The libertarian principle is compatible in principle with culturalism. Libertarians are not cultural relativists, and they rightly emphasize the significance of particular cultural traditions for the emergence of libertarian ideas in the West. On the other hand, while the libertarian principle might permit someone to be a culturalist, libertarians could have good reasons for questioning culturalism, including evidence for the independent emergence of libertarian ideas elsewhere. And the libertarian ideal will prompt the libertarian to resist varieties of culturalism that not only challenge particular ideas but that also lead to the effective silencing and exclusion of particular people—or, indeed, that seem in some way to legitimate aggression against them. Culturalism need not be racist or sexist, but the libertarian, aware of its potential to be both, will embrace it tentatively at best.

To the extent that the fundamentalist employs state power—as through the criminal law—to punish (say) the sexual non-conformist, the libertarian must clearly object: such a use of force is paradigmatically aggressive, undoubtedly in violation of the libertarian principle. And even when the fundamentalist does not employ force to suppress dissent, but uses less overt varieties of social pressure to penalize harmless behavior, the libertarian ideal must surely lead libertarians to disapprove. Libertarians may certainly be religious; but it is hard to see how they could be fundamentalists in the sense considered here.

The libertarian has every reason to value the security of person and property. But the constable often appears to favor the use of force to maintain established social boundaries and conventions, and to value order more than liberty; conflicts with the libertarian principle are almost inevitable. The constable’s dismissal of procedural safeguards for criminal suspects may not itself be aggressive, and need not be inconsistent with the libertarian principle. However, the libertarian, instinctively suspicious that state power can be abused, will be inclined to favor its persistent limitation. Certainly, the libertarian principle will rule out the use of the ‘third degree’ and of torture in the course of interrogating prisoners.

While the libertarian will surely welcome the deterrent effects of the legal consequences suffered by those who harm others, the libertarian principle likely rules out deterrence as an independent justification for the imposition of those consequences. Whether retribution is consistent with the libertarian principle is subject to debate, but it is clear that libertarians have often tended to regard the tort law system as providing a more satisfactory means of dealing with harm to others than the criminal law, not least because the former, unlike the latter, can impose liability only when real harm has occurred and must (ordinarily) proportion damages to the actual extent of the harm. By contrast, the criminal law the constable seeks to enforce can penalize people for conduct whether or not it involves demonstrable harm and whether or not the penalties the law imposes reflect the magnitude of any actually occurring harm.

The libertarian principle is clearly inconsistent with imposing criminal penalties on people for the victimless offense of keeping and using weapons to defend themselves and others. And the constable’s concern to maintain the capacity of the authorities forcibly to secure order seems inconsistent with the libertarian ideal; the libertarian as such has no brief for the preservation of existing structures of authority. Finally, the defence of social order which the constable sees as a crucial objective will often appear to the advocate of liberty as a means of suppressing welcome variety and of enforcing conformity with arbitrary norms. The consistent libertarian will have little or no reason to regard being a constable as appropriate or desirable.

The libertarian is, of course, an enthusiast for markets. For an authentically free market is a prime example of a pattern of social interaction characterized by the absence of aggression. So the libertarian will often have good reason to make common cause with the marketeer. At the same time, however, the libertarian will want to emphasize that in no political environment in today’s world is there anything remotely like a free market. This is both because of ongoing state intervention on behalf of privileged elites and other favored groups and because the conditions of the playing field on which economic actors meet reflect the effects of past injustices that have consistently and violently benefited some groups of people at the expense of others.

The marketeer will often resist interference with the current distribution of property rights in a given society, whatever its origin; but the libertarian will be much more likely to favor potentially radical measures designed to rectify past injustices. In addition, the libertarian has no particular reason to endorse the marketeer’s moralizing about market conditions; and the libertarian who acknowledges the libertarian ideal as an essential component of libertarianism will surely want to emphasize that some economic conditions that do not involve the misuse of force are nonetheless objectionable because they minimize freedom and reduce people’s effective capacities for responsible action. The libertarian will sometimes find the marketeer a useful ally; but the libertarian should not, I think, want to be a marketeer except when being a marketeer does not involve accepting naïve beliefs about the origin or dynamics of actually existing markets.

The libertarian certainly need not be a pacifist. But the libertarian principle counts very strongly against participation in or support for almost all of the wars in which states engage, because they are frequently pursued for unjust ends and are almost always conducted using unjust means. The libertarian principle also counts against torture and interference with civil liberties. And the libertarian ideal militates against the endorsement of a stance whose underlying purpose seems often to be to maintain the power and prestige of the state.

IV

In some cases, libertarians should be conservatives; in others, they may be; in others, they should not be. Libertarians should be fallibilists. And doubtless they should be traditionalists if traditionalism makes sense philosophically. They ought to embrace truly free markets, but they should be marketeers only if doing so is compatible with rejecting assumptions that some marketeers embrace. They may, but need not, be organicists or localists—provided they reject approaches to social life that enforce conformity and suppress dissent. They might be culturalists, but they should be thoroughly wary about some of culturalism’s associations. They have good reasons not to be hierarchicalists, and overwhelming reasons not to be constables, fundamentalists, or warriors.

Sunday, September 27, 2009

MakerBot and Deletionism

I had never heard of desktop manufacturing before I began reading the on-line drafts of Kevin Carson’s bracing Organization Theory. But when I read Kevin’s discussion of the concept, I was floored—and very excited.

MakerBot is a new (at least to me) addition to the industry. And for anyone interested in a decentralized manufacturing model, its arrival on the scene ought to be of some interest for its own sake.

But I want to use its appearance as an occasion for a rant on another topic.

A few minutes ago, Wikipedia founder Jimmy Wales posted a Facebook status update alerting people to MakerBot’s existence. He wrote that he was surprised by the absence of a Wikipedia article about the company, which struck him (surely rightly) as doing exciting things.

I decided to look on Wikipedia for an article on MakerBot. Not surprisingly, someone who’s Wales’s friend on Facebook (or, perhaps, if his status updates also appear on Twitter, one of his Twitter follower) created a stub regarding the company in short order—no one would have had time to respond by writing a full-length article. And, equally unsurprisingly, someone flagged this micro-article for immediate deletion.

I’m a passionate inclusionist: I just don’t see who loses if an article someone wants incorporated in Wikipedia stays (as long, of course, as its not shown to be factually in error and uncorrectable). I hope this one does.

Friday, September 25, 2009

An Anarchist Text?

Is Economic Justice and Natural Law an anarchist text?

I am a market anarchist: I reject the legitimacy of any entity that claims or seeks to exercise a monopoly of force in a given territory and I favor the existence of legal rules in a stateless society that would protect property rights and market exchanges. That will obvious to anyone who’s read this blog or comments I’ve made elsewhere on-line. And it will be, if anything, more obvious to anyone who’s read my forthcoming book The Conscience of an Anarchist.

It may not be so clear, however, to anyone who reads Economic Justice and Natural Law. I reflected on this with a little amusement when I visited the book’s Amazon page yesterday. People who’d purchased “related items” had “also bought,” e.g., Human Action and Ron Paul’s End the Fed. What would readers of End the Fed think of EJNL? I suspected that a number of them would be puzzled.

To be sure, EJNL is primarily about what it is reasonable for individuals to do, not about when the use of force is or isn’t appropriate (the quintessential issue for libertarian political, as opposed to moral, theory). And it does offer a subdued challenge to the support for state authority articulated by the new classical natural theorists (my primary conversation partners in the book). I suspect, however, that this early bleat on behalf of anarchism will go unacknowledged by many readers, who will read the book as conventionally statist—despite the fact that I rarely refer to states and their laws, but focus instead on the rules, norms, and institutions of communities that surely mightn’t be, and which I certainly don’t intend to be, states.

That’s partly because the book is not an argument about anarchism or a discussion of the legal dynamics of a stateless society (a topic more likely to show up in my next academic book). But it’s partly because I’m employing a philosophical approach that will likely be unfamiliar to many anarchists and partly because I do occasionally refer explicitly to the legal system’s doing things that most people tend not to expect to occur in a stateless society. I argue for a view of property rights as conventional, for the reasonableness of multiple property systems, and for the legitimacy of:
  • tort actions for discrimination in economic transactions and for wrongful discharge
  • court support for participatory workplace governance, and probably workplace democracy
  • legal rules that allow workers, peasants, etc., to claim some property held by absentee landlords (albeit in cases more limited than those canvassed in some recent discussions of mutualism)
I can certainly see how the moves I make in EJNL might puzzle even a thoughtful and reflective reader of The Conscience of an Anarchist. Certainly, they puzzled as insightful and perceptive a commentator as my friend Kevin Carson, who has posed a number of pointed observations and critical questions regarding EJNL. I want to say a bit more here about what I’m up to in EJNL in a way that builds on my exchanges with Kevin about the book’s agenda and assumptions—exchanges for which I’m immensely grateful.

In Part I, I’ll talk about the conception of property I develop in the book: an Aristotelian-Thomist conception of property rights as grounded in more fundamental moral principles and designed to serve human needs. In Part II, I’ll emphasize that this conception of property means that property rights, while robust and stable, aren’t absolute: they’re pragmatically justified and pragmatically constrained, and this means that they can be defined ex ante in ways that could allow for legal remedies for non-violent injuries. In Part III, I stress that the legal systems defining and enforcing rights would not be monopolists in a stateless society, that multiple protective agencies and their associated legal systems could overlap in a given territory, and that easy exit would therefore mean that (a) people wouldn’t be compelled to accept legal norms they were unwilling to accept and (b) market competition would constrain the development of alternate legal standards. In Part IV, I briefly revisit my treatment of health care in EJNL, observing that it isn’t statist, but is insufficiently attentive to the political and economic dynamics that make health care inaccessible. I conclude with an overview of my arguments in Part V.

I. An Aristotelian-Thomist Conception of Property


The view of property I defend in EJNL is rooted in, but not identical with, that advanced by the new classical natural law theorists. Thus, it is broadly Aristotelian-Thomist. In the book, I argue, in brief, that a set of overlapping rationales—autonomy, compensation, generosity, productivity, reliability, stewardship, and identity—provide good reason for the existence of stable systems of property rights, but also provide good reason to regard many different potential systems as just. In Section A, I examine the notion of property rights as pragmatically grounded, rooted in more fundamental principles and designed to serve agents’ welfare. In Section B, I emphasize that this means, in particular, that property rights are instrumental—designed to help agents participate in basic aspects of well being. I consider some risks associated with such a conception of property rights in Section C.


A. Property Rights as Pragmatically Grounded


I believe the new natural law theorists have made a convincing case that there are lots of reasonable options that different communities might pursue. It seems to me that property rules have to be developed from more fundamental considerations about justice and human flourishing, and those considerations seem to me compatible with a range of possibilities.


The Aristotelian approach has played a key role in shaping the natural law tradition that has, in turn, influenced many libertarians. While Plato seemed inclined to think of private property rights as a grudging concession to be made to those in the middle rank, but denied to members of the elite, Aristotle offered clear defenses of private property.


But those defenses were not Lockean in nature. Aristotle says that all things are common—in Catholic terms (influenced by Thomas, in turn influenced by Aristotle), there’s a “universal destination” of goods—but need to be particular people’s responsibility. He focuses mainly on what I would call the stewardship and productivity rationales for property. Aristotle wants to emphasize that property rights matter, even though they are in a sense artificial. This doesn’t mean they’re creations of the state that can be extinguished willy nilly. But it does mean that they’re particular ways of specifying deeper, underlying moral principles. For Thomist Aristotelianism, if not for Aristotle himself, the most basic of these principles would be the Golden Rule. If I want and need autonomy, reliability, etc., I have good reason to want the same for you; what kind of property system do I therefore have good reason to support? Given the value of the interests subsumed under the various property rationales, following the Golden Rule (which is basic to the new classical natural law approach) provides someone with good reason to favor an extensive and stable system of property rights.


B. Property Rights as Facilitating Participation in Basic Aspects of Well Being


The variant of the new classical natural law theory I defend identifies a range of aspects of human welfare or well being. These include life and bodily well being, knowledge, practical reasonableness, friendship, æsthetic experience, creativity, mental health and inner peace, play, and religion. The list might or might not be exhaustive; what matters primarily is that we acknowledge that these basic aspects of well being are incommensurable and non-fungible (this rules out consequentialism in principle as a general moral strategy, because there’s no good-in-general to maximize) and that seeking to participate in them is what makes an action reasonable.


On the NCNL theory, then (and here I think the NCNL theorists are perfectly aligned with Aristotle and Aquinas) property rights provide ways for people to participate in the various aspects of well being. They’re instrumental (with the exception, on my view, of what I call identity-constitutive property). That doesn’t mean they’re not important and worth protecting; it just means that they serve the purpose of furthering people’s more fundamental interests in the basic aspects of well being.


For NCNL theorists, in virtue of the Pauline Principle (roughly: don’t cause harm purposefully or instrumentally to a basic aspect of well being), there’s a strict, deontological prohibition on making an attack on any basic aspect of well being the object of one’s action or choosing such an attack as a means to some other end. (It can sometimes be reasonable to do something with bad side effects [the most obvious example: causing harm in the course of defending against an unjust attack]—though only, roughly speaking, if one would be willing to accept a comparable risk of suffering similar bad consequences oneself.) That obviously means that I can’t attack you for the purpose of harming you, but it also means I can’t cause you physical harm for the purpose of making you submit to my will, etc.


For NCNL theorists, though, there’s no similar exceptionless deontological prohibition on interfering with property rights. There are property rights, and there are many good reasons not to interfere with them. There are good reasons for the law to protect them. But the Golden Rule will be the most commonly applied test of the justice of interference with them, and interfering with them will sometimes be consistent with the Golden Rule. Because they’re instrumental and rooted in contingent (albeit highly constrained) convention, they don’t enjoy the same kind of exceptionless protection that natural law theory suggests should be afforded, for instance, to the right not to be subjected to physical attack.


The relevant question for any legal system in a stateless society is, I think: what does just acquisition entitle me to do with what I’ve justly acquired. Willy-nilly interference with justly acquired property undermines reliability and autonomy and stewardship and the other values a just property system is designed to protect. But I also think there’s room for the relevant ex ante rules to be defined in ways that allow for remedies for some kinds of harms that don’t involve the use of physical force.


C. Risks Associated with a Pragmatically Grounded Conception of Property Rights


Clearly, there’s nothing in principle inconsistent with a commitment to anarchism about treating property rules as contingent and evaluating them pragmatically. A great many anarchists who reason primarily in consequentialist rather than deontological terms about property rights (think David Friedman and a number of the GMU-influenced anarchist economists, as well as William Gillis) and still (rightly) see good reason to defend robust versions of those rights. But it remains true that the Aristotelian-Thomist tradition doesn’t think of all rights as on all fours.


Many anarchists are understandably rendered uncomfortable by the thought of treating property rights as potentially porous, underdefined, and susceptible of interference might create, given the potential for tyranny that might accompany a definition of such rights that could be seen as allowing them to be compromised willy-nilly. But precisely this concern can be captured by natural law theory’s concerns. Once the significance for human participation in the basic aspects of well being of, for instance, autonomy and the reliability of the property system is recognized, willy-nilly interference with people’s property won’t be a reasonable option, even for someone whose view of property rights isn’t particularly Lockean.


It seems to me that a system of stable, autonomy-protecting property rights might well allow different definitions of just what the bundle of rights associated with ordinary ownership comprised. And I think that communities can justly have different legal systems, albeit ones shaped in such a way that there are stable ex ante rules that aren’t altered willy-nilly in search of some sort of patterned income distribution (or any other goal). This kind of flexibility, at the level of particular property rights and at the level of communal legal systems, is probably an unavoidable conclusion of the basic Aristotelian-Thomist view of property. But that view needn’t be seen as opening the back door to the state or to the oppression of particular people by authoritarian local communities.


Predictable, stable, autonomy-protective rules are vital. But among such rules could still be, e.g., the Aquinas/Locke rule in favor of reasonable infringement in emergency situations and rules permitting wrongful discharge torts. Predictability, reliability, etc., needn’t get in the way of these kinds of rules. Natural law theory doesn’t require, and tends to militate against, ex post consequentialist tinkering with property rights. It certainly doesn’t provide some general license for communities to go off in search of wonderful social consequences. (I think firing someone because, while she’s doing her job properly, she won’t have sex with you is a specific, identifiable wrong done to her, not to some ill-defined social whole.) I think it’s vital to have stable, predictable rules that don’t justify ad hoc interference with people’s autonomy, but such rules could, I believe, include the sorts of rules I suggest are reasonable.


II. A Pragmatically Grounded Property System Allows for
Multiple Kinds of Legal Remedies


I believe that it is an implication of the natural law view of property that property rights are real, but not absolute, and that not just anything one does with one’s property is morally right. I also believe, separately, that some legal interference with one’s use of that property may sometimes be justified. However, I’m not inclined to argue for (indeed, I would certainly argue against) substantial or ex post limitations. In Section A, I note that, if multiple systems of property rights are just, remedies that might not be available in a legal system with Lockean property rights might rightly be available in another legal system. I observe in Section B that this means that there might well be legal remedies for non-violent injuries, and I consider some risks associated with this possibility. I emphasize in Section C that a pragmatic conception of property rights need not feature the use of legal coercion to compel performance of imperfect duties. In Section D, I stress that not all enforcement mechanisms employed by a just court system will be coercive ones—shaming, shunning, boycotting, and similar options should also be available—so that talk about legal remedies need not be talk about the use of force. In Section E, I suggest that compulsory money damages could and should be awarded on occasion by a non-monopolistic justice system.


A. Variable Property Rules and the Availability of Diverse Kinds of Legal Remedies


If I were a judge in a state-free community, charged with doing justice and able to develop remedies in the way common law judges have been able to do for centuries, and someone came to me with a tort case against an employer for, say, discharging her from her position as a lawyer simply because she wouldn’t have sex with him, I’d be inclined to award damages if she could prove her allegation (though I don’t believe in punitive damages, and of course proving his intent would be up to her). But, of course, people could opt to be clients of my court (or perhaps a more comprehensive protective agency of which my court was a component) or not.


I would be inclined to follow the approach of Aquinas and Locke (who here seems to agree unequivocally with Aquinas) and award no damages against someone who, when hungry and with no other options, broke into someone else’s house and took some food. Again, people could opt to use my court system or not, I expect, though, if people thought my rulings in these kinds of cases were just, they could obviously shame, boycott, etc., those who opted out of my court system and exert non-forceful pressure to persuade others to become its clients.


The fact that protective agencies and court systems would lack monopoly power in a stateless society means that, say, tort law remedies for (for instance) employment discrimination would be readily available only if either (i) both parties were clients of the same protective agency and were contractually obligated to accept its rules, which happened to include ones providing for such remedies or (ii) force-free pressure (shaming, shunning, boycotts, etc.) led to a non-client’s acceptance of the jurisdiction of a protective agency the court system of which offered such remedies. If I render a judgment in my imagined tort case against someone who’s already agreed to accept my judgments, then enforcing the judgment, seems easy enough to justify. And if the person I regard as a tortfeasor hasn’t signed up for my court, then, as I say, it seems as if there would be ways to sort things out given treaty-like relationships between multiple protection agencies.


Presumably, if someone got a default judgment against a discriminating employer—say, a subscriber to another protection agency who refused to show up for trial—there would be the same issues related to conflicts of laws, “extradition” treaties, and so forth that are often discussed in connection with conflicts among protection agencies. The risk of violence and the desire to foster cooperation would surely lead to the evolution of peaceful, predictable mechanisms for dealing with “cross-border” conflicts of this sort, though (as is true in the contemporary international environment) they doubtless wouldn’t lead to a protection agency’s enforcement of all judgments announced by the courts of other agencies or to the protection of all of the rights it ordinarily secured for its own members against all other agencies.


In a market free from corporate privilege, indulging in what Gary Becker has taught us to call a “taste for discrimination” would obviously be very pricey, and no doubt discrimination would be significantly minimized. And I believe, on broadly consequentialist grounds, that the more complex a property system, the more risks of arbitrariness and manipulation arise. But I believe the issue isn’t just reducing the systemic incidence of discrimination—it’s providing some kind of remedy for an individual person who’s been injured by someone else’s conduct.


I understand the concern that allowing for discrimination claims, or for rules that limited workplace governance forms, would introduce a kind of ad hoc quality into a legal and economic system, a quality that would undermine the capacity of people to plan and to organize their lives without interference. I think that’s true if we’re talking about arbitrary ex post decisions designed to bring about particular outcomes, but it’s not obvious to me why it would need to be the case vis-à-vis explicitly defined tort law rules. I think George Reisman et al. fail to see the point that mutualist communities would have publicly announced ex ante rules against the maintenance of title by long-term non-occupants of land, and that such communities wouldn’t license stealthy misappropriation from unsuspecting innocent Randians. I think the same thing is true of the model I envision: the rules would largely be known in advance (though common law courts obviously have to develop legal systems evolutionarily—I think the notion of a Libertarian Code, à la Rothbard, is likely to be unworkable) and would provide a stable back-drop for people’s actions.


B. Risks Associated with the Availability of Remedies for Non-Violent Injuries


Even someone who grants that there might be a property system such that the kinds of court decisions I’ve envisioned wouldn’t themselves necessarily constitute unjust infringements on property rights might still conclude (it’s easy to imagine a Friedman-style consequentialist reasoning this way) that the very existence of a system capable of involving itself in certain sorts of personal disputes (say, over labor and employment issues) could easily become a kind of micro-state. Even if the envisioned actions weren’t themselves unjust, a structure capable of engaging in them could easily become powerful enough to engage in all sorts of injustices.


Obviously, I can’t guarantee that a protective agency that offered remedies against purposeful employment discrimination wouldn’t become a micro-state. But I can suggest three reasons why I think we ought not to be too fearful of this possibility.


(i) There are the general arguments about why protective agencies of all sorts wouldn’t become states. People in a stateless society are likely to resist, perhaps even with violence, the rise of a state-like entity. Violently suppressing competition is very costly. And, while states today enjoy a measure of legitimacy because so many people accept statist political theory unthinkingly, it’s unlikely that they would in a stateless society, which means that they could not depend on willing cooperation.


(ii) There are good, readily comprehensible reasons for a property rights regime to be stable and predictable, not manipulable in the interests of particular end-states. The various overlapping rationales for/constraints on a property system would make unconstrained consequentialism untenable. Thus, the kinds of potentially reasonable constraints on property rights I can imagine some just protective agencies enforcing wouldn’t be open-ended mandates to achieve particular end-states, including patterns of wealth distribution. They would, instead, amount to rules that treated certain kinds of injuries as legally cognizable. I think it would be possible to cabin conflicts over and remedies offered for these sorts of injuries in ways that wouldn’t, needn’t, entail the creation of increasingly power enforcement bureaucracies with proto-statist tendencies.


(iii) The right to exit, the right of individual secession, would surely serve as a check on the rise of state-like entities, both because, if they were for-profit businesses, they wouldn’t want to lose customers to others, and because, whether they were for-profit businesses or not-for-profit cooperatives or charities, they wouldn’t want to expend resources on conflicts with the competitor agencies with which those who exited them might choose to affiliate and to which those who exited would look to protection from them.


C. The Aristotelian-Thomist Model Does not Justify the Use of Force to Require Performance of Imperfect Duties


It is useful to distinguish between what natural law moral theory suggests is reasonable and unreasonable for people to do, and what natural law theory suggests it is reasonable and unreasonable for someone to use force to compel someone else to do. Thus, I think there is a strong natural law case to be made for the view that people should contribute resources to charities, communal projects, and other worthwhile endeavors. But I do not argue for the existence of a coercive administrative apparatus with the right to use force to make people do this.


I don’t argue in this way for several reasons.


(i) The relevant duties are “imperfect”—there are lots of ways to fulfill them. In general, some communal institution doesn’t have the right to determine which way I should fulfill a duty, since multiple ways are OK.


(ii) A communal institution lacks information regarding my needs, circumstances, and obligations, so it’s judgment about what my duty is may well be wrong.


(iii) Any communal institution with the power to make me fulfill a given duty (even in the rare case in which I don’t really have options and am clearly doing wrong by not doing something in particular) is likely to be too powerful, too likely to engage in what we would all agree would be rights-violations.


(iv) Stable, predictable, reliable property rules promote both individual autonomy and communal prosperity, and it’s a bad idea for them to be interrupted ex post. (An approach, like the one reflected in ancient Israel’s gleaning rules [at least as they’re described in the Bible], that didn’t depend on the existence of a coercive bureaucracy—or any bureaucracy—could, I think, be given sanction by the legal system [see my comments on anarchic legal systems below], but this might or might not have anything to do with the use of force.)


D. A Reasonable Legal System Can and Should Feature Non-Coercive Enforcement Mechanisms


A community’s institutions could prompt people to fulfill imperfect duties using non-coercive enforcement mechanisms. More broadly, such mechanisms should be acknowledged as effective and important. In virtue of her voluntary acceptance of a protective agency's authority (directly if she contracts with it herself, indirectly if an agency with which she does contract also enforces its decisions in virtue of some sort of interagency agreement) someone might well be subject to compulsory loss of property as a result of a lawsuit. But I do not believe that the use of force by the judicial system, at least as presently constituted, is the right source of remedies for all wrongs. (I can imagine volunteer reconciliation and ‘restorative justice’ entities dealing on a non-forceful basis with some kinds of wrongs not appropriate for forceful judicial resolution and being treated as aspects of the judicial system. But this would obviously be a very different sort of judicial system from the one we have at present).


Judicial economy makes some wrongs non-justiciable. And there are other kinds of costs associated with some kinds of tort actions. Certainly there’s a case to be made that legislatures that abolished so-called “heart-balm” actions (alienation of affection, breach of promise) were doing everyone a favor by avoiding prying legal investigations into people’s private lives and the airing of private grievances in ugly, public ways. But I’m not sure why the humiliating, degrading, and costly refusal to, say, provide someone with a bed for the night because of her skin color (in violation of common-law innkeepers’ duties—not just ones created by liberal legislators in the post-WWII era) shouldn’t be actionable, and couldn’t be made so without the creation of a substantial risk of ad hoc consequentialist interference with people’s autonomy.


E. The Limited Appropriateness of Compulsory Money Damages


I understand and appreciate the argument that awarding compulsory legal damages—in effect, the seizure of property—is only reasonable as a response to aggression against the person or property or another. There’s a rough principle of proportionality here. But I don’t see accepting this argument as deontologically required. If my court did provide a tort remedy for a particular instance of discrimination, this needn’t represent an opportunity for dramatic interference with autonomy: what I did would be clearly cabined—my court wouldn’t allow statistical evidence here, but only evidence of actual purpose; the relevant rules could be clearex ante; and, as I’ve emphasized, exit costs from particular legal systems could be fairly low.


In addition, my own—not wholly arbitrary—tort law rules would limit damages to actual economic damages (not punitive damages) plus reasonable costs of recovery (including reasonable legal fees). And, to keep legal fees from being used as hidden punitives, I think I’d be inclined to include reasonable legal fees in the damages I awarded only when those fees equaled or exceeded the economic damages to which the plaintiff was otherwise entitled, and this would obviously serve as a substantial disincentive to frivolous suits. So I think there would be sufficient cabining here to prevent abuse.


As I've suggested, the dispute resolution system of a stateless society would surely feature a variety of restorative justice mechanisms and various means of awarding symbolic damages. This would make it easier for a consensus in favor of limiting economic damages to directly economic losses and to other kinds of losses with indirect economic consequences to emerge, and to prevent tort law from being asked to do double duty as a means of restoration and reconciliation, which I think require other kinds of communal institutions. This would further reduce the likelihood that tort actions would lead to random interference with people’s autonomous enjoyment of their property, I think. I definitely want stable, autonomy-protectiveex ante rules. But I believe such rules could, in principle, include, e.g., carefully cabined tort law provisions allowing for remedies for discrimination, and needn’t provide open-ended encouragement to people to use the legal system to right every symbolic slight or pursue every imagined opportunity for personal development.


Non-forceful mechanisms for exerting influence on others—boycotts, shaming, etc.—can certainly be used to protect some kinds of interests. But voluntary communities in a stateless society—communities from which people could always secede and the (economic) cost of exiting which would generally be low—could also, it seems to me, maintain norms, rules, and institutions that constrained (in a fair and predictable manner that safeguarded autonomy, reliability, stewardship, generosity, productivity, identity, and compensation) some property rights and awarded traditional economic damages for some non-forceful injuries. Shaming and boycotts could certainly be used in place of force to secure effective remedies for some injuries, but I don’t think court systems from which people are free to secede should be limited to employing only these means.


I wouldn’t be overly troubled by a set of arrangements in accordance with which the enforcement of rules against discrimination (the most obvious example) were by way of boycott, shaming, and other sorts of community pressure. That would be a livable second-best option. I’m just not convinced that I see good arguments for a set of property rules that would make it wrong for a given legal system to enforce tort claims against those shown to discriminate (note that the burden of proof here would be on the person claiming discrimination to show that it occurred intentionally, and that I would disallow punitive damages), especially given easy exit from such a system.


Indeed, I think that a legal system that didn’t provide remedies for this sort of injury would likely be unjust. But I don’t believe that it would be either just or safe to put in place a system that could prevent people from seceding or compel alternate legal systems (ones that were, perhaps, unjust) to adopt the same norms.


In EJNL, I use the word “right” fairly loosely—so that I have a right against you that you not do X whenever you do wrong by treating me if you do X. That leaves open the issue of the appropriate enforcement mechanism. Whether it’s just to employ a particular enforcement mechanism is itself a question that has to be sorted out per the same principles of practical reasonableness as I have to use in any other context.


III. In a Stateless Society, Legal Systems Would Lack Geographic Monopolies


In the absence of the state, there’s no guarantee that there will be anything like “the law code of an entire contiguous geographical unit.” Unless we live in some kind of proprietary community (saints preserve us from that!), there would surely be the right to secede, down to the individual level.


In a genuinely stateless society, a community—comprehensive or limited to the provision of legal services, geographically contiguous or overlapping in the same region with multiple alternative communities—would need to be (if it were to be something clearly other than a state) genuinely voluntary, featuring relatively cost-free secession rights. Of course, it might be the case that, in some particular instance, everyone in a given city would opt for the same court system, but it couldn’t coercively maintain a monopoly without turning into a micro-state. And technology would likely make it increasingly easy for people opt out of participation in a particular court system.


If we’re going to think apply about issues like these, we need to slough off a kind of instinctive, residual statism. It often feels to me as if conversations about these sorts of matters still begin from the assumption that local institutions in a stateless society will be ultra-micro-states, with territorial monopolies of force; I sometimes feel as if discussions of these matters haven’t moved beyond reflexive statism. Indeed, that’s true even if what’s envisioned as monopolistic isn’t a state apparatus but an abstraction. The kind of uniform “Libertarian Code” some people seem to imagine bears to the state something like the grin does to the Cheshire Cat. If such a code really does function monopolistically, then, even we’re still left with something like an ultra-minimal state. Much better, it seems to me, to allow a thousand legal codes to bloom.


Of course there would be meta-rules governing disputes between competing defense agencies. But these meta-rules needn’t become substitute laws, because they leave the diverse laws of the alternate agencies in place, just like current choice of law rules (both domestic and international). So it shouldn’t be the case that the process of conflict resolution would lead to a de facto monopoly over the definition of substantive law in a given region.


Communities in a stateless society might well be virtual, rather than geographically localized, and that even a geographically localized community or court system or protective agency wouldn’t have a monopoly over the use of force in the territory in which it operated—someone would always be free to secede and to affiliate with another community, court system, or protective agency. If people weren’t free to secede, the local community, court system, or agency, would be a state; if we’re really talking about anarchy, secession has to be an ongoing option, all the way down to the individual level (cp. Mises). I don’t tend to agree with Arnold Kling and others that whether one has voice in a given community doesn’t matter much as long as one has exit rights, but I do think exit rights are vital. If the only legal system available to someone involves a local jury, then, while it needn’t have a monopoly over the use of force, it might be able to act a lot like a state. But if people also have the option of joining multiple, non-geographic protective agencies, they can certainly opt out of legal systems they don’t like.


Just as I think it is unsafe and unjust to have states, so I think it would certainly be unsafe, and potentially unjust, to seek to create non-state communities that began to exercise many of the powers states have. I certainly don’t want such communities with roving mandates to run people’s lives—I sure as hell don’t want to return to an era of zoning, eminent domain, farm price supports, drug regulations, etc. And perhaps allowing this kind of tort action puts us on the slippery slope toward restatification. Obviously, I hope not.



IV. Health Care


What I say in EJNL regarding health care is perfectly compatible with anarchism, but it doesn’t reflect the careful thinking about health care models in which I’ve tried to engage since the beginning of the debate regarding the Obama administration’s health care proposals. In EJNL, I argued that there was good reason for the members of a community to share the costs of providing each other with health care. What I envisioned was something like a community-wide mutual aid (albeit with fees for those unable to pay covered by the rates paid by those with more resources). But, while I referred to patents, licenses, and hospital accreditation, I hadn’t thought seriously enough about the systemic factors that drive up health care costs. And I hadn’t considered the degree to which a group plan like the one I envisioned could tend to keep costs high.


If I had written the relevant portion of EJNL now, I would likely have emphasized the centrality of eliminating licensing and accreditation cartels, employer-provided bulk-purchased insurance, limitations on the provision of insurance, and constraints on competition within the insurance industry. I would have stressed the importance of removing multiple state-created sources of poverty in order to make already less expensive health care more available. And I would have emphasized that mutual aid and other kinds of intra-communal cost-sharing would and should be needed only if and when lack of access to care persisted despite the implementation of the institutional changes I’d already outlined. I would continue to argue for universal care: but I would emphasize, with Charles Johnson, that they way to achieve universal care is not through a cookie-cutter state managed system, but rather through a whole range of institutional changes and voluntary associations.


V. Conclusion


EJNL is an anarchist text: the account of justice I elaborate in it does not presuppose or require the existence of the state. Central to this account is the assumption that the same principles apply to everyone, that people do not gain new rights or privileges because of particular institutional roles.


Though natural law theory is deontological in structure, the Aristotelian-Thomist tradition doesn’t feature deontological principles that protect property rights in particular. These rights are seen to flow from more fundamental principles—particularly ones calling for fairness and for the efficient pursuit of reasonable objectives. Because they are rooted in underlying principles, it is to those principles, rather than to deontological rules referring specifically to property, that we need to appeal when determining just what a given bundle of property rights might amount to.


Despite the fact that property rights are justified, and can be constrained, pragmatically, there are good reasons for any community’s legal system to treat such rights as extensive and stable. Autonomy, reliability, productivity, stewardship, generosity, compensation, and identity—all help to justify a property system and to warrant limits on interference with property rights once they’re defined.


But the general objection—which I wholeheartedly endorse—to ex post meddling with property rights doesn’t itself justify defining those rights ex ante in such a way that remedies for serious personal injuries, including ones that don’t involve physical harm, aren’t available. There’s no good a priori argument to the effect that a community’s legal system shouldn’t provide such remedies.


It’s important, however, to emphasize that, in a stateless society, there wouldn’t be a single, monopolistic legal code. Different communities could and doubtless would sustain different sets of legal rules. Different protective agencies, with different legal codes, could co-exist in the same geographic area, and anyone would ordinarily be free to secede from one agency and opt for the services of another (including one she created herself). Agreements similar to those that govern cross-border disputes today would ensure the peaceful resolution of lawsuits between people affiliated with different protective agencies. Thus, a remedy for discrimination (for instance) would be available to a plaintiff when the defendant she sued was a client of the same protective agency as she (presuming that agency’s legal system provided for such remedies), or in light of an appropriate agreement between her protective agency and the defendant’s. (A protective agency’s legal system might provide for compulsory money damages; alternatively, restorative justice remedies might be available. Depending on a defendant’s contractual obligations to the plaintiff’s protective agency or to her own, money damages might be compulsory. But in some cases non-violent suasion—shaming, boycotts, etc.—might be used to obtain damages.) Readily available exit would help to ensure that market pressure led to the development of suitable legal standards by competing court systems.


While EJNL is not designed to outline the details of a stateless legal system, the arguments I offer regarding the operation of communities’ legal systems throughout the book should be understood to apply to a stateless order marked by the freedom to exit a given community and opt for another. The communities to which I refer in the book should not be understood as monopolists, territorial or otherwise.


Though my discussion of health care in EJNL is not in any way incompatible with the picture of overlapping voluntary communities I offer here, I could and doubtless should have outlined a path to universal health more clearly sensitive to market dynamics than the one featured in the book. But the model of shared support for health care I provided was not in any way statist; and nothing else in the book should be read as grounded in the authority of the state. EJNL is not a book about anarchism, but it is intended to be entirely consistent with what I have said elsewhere about the injustice of the state and the desirability of a stateless society.