Does Using Force Convert a Legal Regime in a Stateless Society into a State?

I. Introduction

Apart from the rare exception—someone in the mold of Robert LeFevre or Leo Tolstoy—most anarchists are not pacifists. They suppose, that is, that there are occasions when it might be appropriate to use force—most commonly, to protect oneself or someone else against unjust attack or to secure compensation for such an attack. While the anarchist seeks to realize an ideal of peaceful, voluntary cooperation, she is likely to be very much aware that it may sometimes be necessary to call the people with guns. Force may sometimes be employed to settle disputes over just control over possessions—what I will call property rights without attempt to settle the question of just when someone might be thought justly to control a given possession. However, forcibly defending property rights in a stateless society is not the moral equivalent of state aggression.

In Part II, I briefly describe different sources of legal rules that might obtain in a stateless society and note the kinds of conflicts that might arise in such a society. In Part III, I explain why I believe the forcible resolution of conflicts between participants in the same regime would not qualify as state-like aggression and offer reasons for thinking that the same would be true of the forcible resolution of conflicts between participants in different regimes that upheld the same property rules or that were parties to agreements governing conflicts involving divergent legal norms. In Part IV, I consider two problems posed by the way I’ve framed my claim that legal regimes forcibly protecting participants’ property rights need not be viewed as state-like: the fact that the interdefinability of consent and aggression requires a pre-legal definition of property rights, and the fact that, if such a definition is available, affirming it might seem to be inconsistent with embracing the notion of polycentric law. In Part V, I argue that a regime’s use of force against an outlaw need not be state-like any more than its use of force against a participant in another regime. I conclude in Part VI.

II. Rules and Conflicts

We can imagine that legal rules in a stateless society might be generated by at least three different kinds of institutions (for simplicity’s sake, I’ll refer to these sorts of institutions collectively as legal regimes and those who voluntarily agree to accept the legal rules they establish and maintain as participants):

• the territorialized consensus-based legal regime, in which most people in a given geographic area accept a given set of legal norms. The regime might often be maintained by mutualized institutions formerly part of a state apparatus. The difference between this sort of regime and a state would be that no one in the relevant geographic area would be treated as having accepted the regime’s authority without her actual consent.
• the deterritorialized contractual legal regime, in which people who might not occupy geographically contiguous territory opted for the dispute resolution services of the same cooperative, for-profit, volunteer-based, or not-for-profit dispute resolution agency.
• the deterritorialized communal legal regime, in which people who might not occupy geographically contiguous territory opted for the dispute resolution services of a religious or cultural community to which they belonged for reasons independent of its provision of dispute resolution services.

A property-related conflict (PRC) in a stateless society could occur, in theory, between

• two participants in the same legal regime;
  
• two participants in different legal regimes;
• a participant in a legal regime an someone not affiliated with any regime (without assuming anything about whether such a person engages in violent behavior, we can refer to her conveniently as an outlaw).

III. Regulated Conflicts

Conflicts between participants in the same regime, and between participants in different regimes with appropriate rules or agreements or both, would be consensual. Using force to secure compliance with a regime’s rules in order to end such conflicts need not be state-like.

A. Conflicts between Participants in the Same Regime

When a PRC occurs between two participants in the same legal regime, it is clear that, given that the legal regime is genuinely consensual, featuring full exit rights, the participants will either have agreed directly to the rules governing their conflict or have agreed to standards governing procedures for the determination of such rules in the awareness that such rules would, in fact, be determined. In either case, they will have voluntarily accepted the jurisdiction of the relevant legal regime—and, in the prior case, to the specific applicable norms. Using force to compel them to accept it is clearly not on all fours with using force to impose state dictates on people who have not actually consented to them.

B. Cross-Regime Conflicts

Different legal regimes may feature the same norms relevant to a particular conflict, or different ones. When a PRC occurs between participants in different consensual legal regimes with the same relevant norms, the participants will have voluntarily consented to the norms or to procedures used to generate them. Thus, again, using force to ensure their cooperation will be justified given their prior consent to the applicable norms.

If different regimes feature different norms applicable to a particular kind of PRC, then it will obviously be in the best interests of each regime to establish guidelines—choice-of-law and conflict-of-law rules, primarily—for resolving cross-regime disagreements about the resolution of disputes of this kind (typically, though not necessarily, embodied in agreements with the relevant competitor regimes). If a given regime is fully consensual, then a participant in that regime will have accepted these second-order norm directly or will, again, have consented in one way or another to procedures for their determination. A participant in a legal regime will thus have consented to the employment by the regime of such second-order norms to reach a conclusion regarding the substantive principles to be applied in resolving a dispute and then to use force, if need be, to resolve the dispute. So, again, the use of force here will be legitimate.

IV. Aggression, Consent, and Polycentricity

There are two further related problems here, however. Someone might object that talk about free consent only makes sense given a definition of aggression, but that aggression can only be defined by a legal regime, so that no one could be said to consent to a legal regime. I argue in Section A that a pre-legal account of property rights is at least to some extent possible, so that the objection is unsuccessful. An objector might also hold that relatively stable, uniform property norms would be incompatible with the existence of a truly polycentric legal order. In Section B, I explain why it is possible to support polycentricity and endorse the existence of pre-legal norms.

A. Defining Consent and Aggression Pre-Legally

The first concerns the nature of consent to the jurisdiction of a given regime. We can imagine such consent taking the form of joining a particular religious community (in principle, I suppose, someone might opt to have legal disputes resolved by a religious community to which she didn’t belong, but it seems more likely that people will opt for full-scale involvement in a community and then take advantage of its legal system as an incident of membership), contracting with a for-profit dispute resolution agency, or joining a cooperative. The problem is that whether someone’s decision to consent to a regime’s jurisdiction was voluntary depends on how her rights were defined prior to membership. For I understand a voluntary act as one in which I am not compelled to engage by aggressive force (that is, force not intended to defend against unjust attack or secure compensation for such an attack) or the threat of aggressive force. But what counts as aggression is obviously dependent on what rights someone is judged to have. Thus, for the notion of free consent to have any meaningful content, it must be possible to specify a core of relevant rights that obtain independently of the determinations of any legal regime.

However, the notion of a polycentric legal order presupposes the existence of multiple legal regimes, specifying different legally recognized rights. It might seem as if the reasonableness of a polycentric legal order implied that all rights were legal rights, dependent on the existence and operation of some legal regime or other. If this is so, then there would be no pre-legal rights. And so, in turn, there would be no way of specifying content for the notion of voluntary consent to a legal regime. And this would suggest that the notion of a consensual legal order, fundamental to the concept of a stateless society, was unsustainable and perhaps incoherent.

We can imagine at least four possible moral conclusions regarding the status of property rights, in particular: (i) there is one just set of property rights; (ii) there are several just sets of property rights; (iii) there are no just property rights, because it is wrong for anyone to claim to control any part of the material world; (iv) there are no just property rights because there are no true moral claims at all; or (v) there are no just property rights because, for one reason or another, while there are true moral claims about other matters, there are no true moral claims about our relationships with items in the material world apart from the determination of an organized legal system (I ignore the possibility that pre-legal social consensus might play the same role, because this option can be handled under [ii], above).

If (i) is correct, then there will, indeed, be an unequivocal baseline against which it will be possible to measure the freedom of consent. An act will be free just insofar as someone is not compelled to engage in it by aggression or the threat of aggression against that person’s rights, including her property rights.

If (ii) is correct, then there will not be a single set of property rights that can serve as a baseline against which it will be possible to measure the freedom of consent. However, there will be, ex hypthesi, moral constraints on what a just set of property rights can be like. So while (on this view) different social or legal norms might define property rights in different ways, the choice among just norms would not be unlimited (and might, in fact, be fairly narrow): there are some norms such that acting as if they were in place would be wrong; acting in relation to someone’s possessions in a way that was not consistent with any reasonable property norm would be morally wrong and would certainly count as aggression against that person. So, again, if (ii) were correct, the notion of aggression would have determinate content.

Of course, if (iii) were correct, this would indeed establish a moral equivalence between actions with respect to property claims in a stateless society and actions with respect to property claims by a state. But it would do so at the cost of rendering orderly, purposeful action in the world impossible. No reasonable person would endorse (iii).

It is certainly possible that (iv) might be correct (though the very notion of correctness here is, of course, a normative one, and it would be difficult to affirm the validity of an epistemic norm while accepting the sorts of arguments likely to lead to skepticism about moral norms). Accepting (iv) as true would mean denying any moral difference between self-defense and state coercion. But it would also deny anyone who accepted it any basis for engaging in intelligible moral criticism of the anarchist or of anyone else. In any event, generalized moral skepticism cannot simply be asserted; it has to be defended in one way or another. Until it is, we need not be overly troubled by it; and if its validity ultimately is established there will be more serious problems to resolve than the best way to talk about possessions in a stateless society.

If (v) were correct, so that there were no moral constraints on property rules in the absence of a legal system, if a legal regime could create just any property rules, then there would, indeed, be no way to specify a contentful notion of aggression that could provide the basis for the justified claim that someone had consented freely to the regime’s jurisdiction. But I cannot see why anyone would suppose that this was true. A vast array of approaches to moral reasoning have fairly obvious implications for the moral status of possessions. The notion that there were lots of true moral claims but that none of them constrained how someone could appropriately treat someone else’s possessions is just barely conceivable. It would, however, be bizarre to suppose that an approach to morality developed, in whatever fashion, for the benefit of embodied persons in a world remotely like ours would lack implications regarding the just treatment of their possessions. I believe we can safely proceed on the assumption that no such approach to morality would be credible absent substantial counter-arguments.

B. Right Answers and Polycentricity

It is perfectly possible to affirm that some property systems are just and some are not while still supporting the existence of a polycentric legal order featuring multiple property rules.

It is reasonable to assume that there are constraints on when something can be justly possessed and how others may justly treat someone’s just possessions sufficient to give the notion of aggression, and so of free consent, determinate content. But it might be thought that the existence of these constraints was incompatible with the existence of a genuinely polycentric legal order. In the absence of an overarching authority ensuring the operation of a consistent set of legal norms, some of the property rules enforced by some regimes in a polycentric legal order will doubtless be unjust. Since no one can reasonably want unjust norms to obtain, the argument might run, we must all be obligated to oppose the existence of a polycentric legal order and to favor the establishment and enforcement of a uniform set of legal norms.

A stateless society could, in principle, feature such a uniform set of norms. Murray Rothbard famously called for the adoption by the members of a stateless society of a Libertarian Code. But I think it is clear that the voluntary adoption of such a code would require far more consensus than is likely to be evident in the foreseeable future. In a society without the state, there would undoubtedly be multiple, probably overlapping, sets of legal rules.

It will certainly be possible to object to some of these rules. Different legal systems will doubtless make mistakes, perhaps sometimes very serious ones. And a stateless society’s equivalent of the Abraham Lincoln Brigade may sometimes have reason to become involved in remedying clear injustices perpetrated by some legal systems. But belief in objective constraints on property norms is quite compatible with supporting, rather than opposing, legal polycentricity.

First, that there is a fact of the matter about which property rules are just does not mean that everyone, or anyone, has infallible knowledge of those rules. Polycentricity creates room for experimentation and discovery.

Second, some just rules may be appropriate for people with particular characteristics—histories, personalities, and so forth—and communities of such people may tend to opt for those rules. It does not follow that other just rules won’t be appropriate for people with other characteristics.

Third, even if it is obvious that a given legal regime’s property rules are thoroughly wrong-headed, I can quite reasonably welcome a system that allows for the participants in that legal regime to voluntarily adopt those rules. I could only object to such a system if I believed a coercive authority with the power to impose legal norms on the unconsenting was preferable to a system that allowed for genuine diversity.

It is worth emphasizing that diverse property regimes could be just even if, as is surely unlikely, everyone in a given society endorsed the same underlying rules. For, since legal regimes would be fully consensual, participants would obviously be free to contract out of the baseline property rules everyone treated as society-wide defaults.

V. Outlaws

A regime responding to the behavior of people not affiliated with any regime need not be regarded as behaving in a state-like manner. I explain in Section A why the outlaw might be thought to pose for the clear delineation of the difference between a consensual legal regime and a state. I note in Section B that a regime can largely avoid the risk of engaging in state-like behavior by not engaging in non-contractual contact with outlaws. In Section C, I suggest that a regime responding to simple aggression by outlaws by forcibly upholding what are clearly legitimate property rights need not be seen as state-like aggression.

A. Why the Outlaw Is a Problem

A given legal regime will have various occasions to interact with outlaws. It’s easy to envision a PRC between the outlaw and a participant in the regime—perhaps the regime is mutualist, while she favors Lockean property rules, or vice versa. Because she’s an outlaw, she’s not a participant in any legal regime other than her own (by definition), and it’s likely that she doesn’t have any pre-existing agreement with the relevant regime about PRC (if she does, her case raises no special concerns and can be ignored). In this case, there’s no basis for saying she’s consented either to the substantive property rules enforced by the regime or to any second-order choice-of-law rules. Would the regime function like a state in relation to her?

B. Avoiding Non-Contractual Contact with Outlaws

If she sought to involve the regime in a contractual PRC between her and one of its participants who was, let us suppose, following the regime’s preferred legal norms but not her own, the regime could obviously decline to become involved. If it did, it certainly would not be engaging in the deployment of state-like force. The regime could similarly avoid being state-like if it declined to become involved when one of its participants asked it to resolve a contractual PRC with her using its preferred legal norms rather than hers. When the PRC involved a participant’s claim to property currently occupied by an outlaw, or an outlaw’s claim to property currently occupied by a participant, the regime could generally decline to become involved at all, absent the outlaw’s agreement, when preferred legal norms were different. And the outlaw would obviously have good reason to want to agree to the regime’s involvement to facilitate orderly dispute resolution. The regime could also instruct participants that, when concluding agreements with outlaws regarding matters affected by disputed property rules, they should incorporate provisions specifying that PRCs be settled by the regime.

C. Aggressive Outlaws

Following a policy combining preemptive contracting with a refusal in general to become involved with participants’ voluntary relationships with unconsenting outlaws would make it relatively easy for a regime to avoid state-like behavior. This does not mean, of course, that a regime would always be able to avoid using force against outlaws. Many PRCs are likely to involve good-faith disagreements about the contents of just property rules. But some outlaws may engage in what the regime regards as simple aggression against participants. In this case, it can reasonably be expected that the regime will use force to repel them and to secure compensation for the harm they have done.

In so doing, however, it would not be acting in a state-like manner, for its use of force would not be best understood as a matter of imposing legal norms on unconsenting third parties. Given the legitimacy of its property rules, in defending participants’ property it would be doing only what they would be entitled to do in its absence. This is obviously the case if there is a single set of just property rules. People who believed that there were and that they had identified them could obviously act in good faith in forcibly repelling aggression against property rights consistent with those rules. But forcibly repelling aggression could also be legitimate if multiple sets of property rules were just: diverse property systems will preclude the same kinds of infringements, and most or all will treat people’s reasonably settled expectations as worth honoring in many or most cases.

A regime’s decision-makers would need to consider the limits on forcible responses to what they view as aggression by outlaws, it seems to me, only when outlaws made good-faith claims to be acting on the basis of publicly defensible moral norms justifying the conduct the regime regards as aggressive. Outlaws who understand themselves simply to be using force to subdue others, who are, in effect, aggressors by their own lights, may always be repelled using proportionate force.

Even if a regime’s decision-makers were uncertain whether it was just to respond forcibly to some behavior by outlaws when it affected participants’ property, they could still in good conscience, and without behaving in a state-like manner, use force in two additional ways. (i) They could reasonably employ force to ensure that the relevant PRC be resolved through negotiation rather than through force. (ii) They could reasonably employ force to defend participants from bodily harm.

The same kinds of considerations would obviously apply if the aggression involved were undertaken not by outlaws but by another regime that simply refused to negotiate choice-of-law agreement with the regime. Such a regime could reasonably be treated as a collection of outlaws—not in order to justify hunting and killing its participants, but to ensure that they were treated with the wary respect due dangerous and uncivil predators.

VI. Conclusion

Forcibly resolving disputes regarding property rights need not make a legal regime in a stateless society state-like. Consensual rules accepted by regime participants and consensual agreements within regimes can resolve most property disputes, and, because they are consensual, enforcing them need not be state-like. While there may not be a single set of just property rights, there are, at minimum, constraints on the range of possibly just schemes of rights, and the existence of such constraints makes it possible for talk about the consensuality of regime membership to be meaningful. A polycentric legal order can certainly feature multiple property rights schemes; and, even if not all of those schemes are just, there will still be good reason to support the existence of the legal order as a whole, even though it makes room for the maintenance of some undesirable regimes (this certainly does not mean that organized and disorganized individuals are not free to actively challenge unjust regimes).

Whatever the legal rules upheld by a just regime, the existence of outlaws need not compel it to behave like a state. In large part, it can avoid non-consensual relationships with them, and when it has no choice to engage with them, it does not act unjustly if it uses force to prevent them from engaging in conduct which would be inconsistent with any just scheme of property rights.

There will obviously be considerable economic and social pressure on outlaws in a stateless society to affiliate with legal regimes and on regimes to standardize mechanisms for resolving cross-regime disputes. There will also be real, if less intense, pressures for regimes to adopt similar rules—though diverse cultural values, moral beliefs, and geographic circumstances may all tend to promote continued diversity. While the injustice of state-like conduct does not depend on its extent—subjecting anyone to aggressive violence is wrong—there need be relatively few pressures on a regime to engage in such conduct. It can, in any case, avoid such conduct by ensuring that its internal rules rest on the content of its participants, that it orders its relationships with other regimes consensually (and in ways that merit the consensual self-obligation of its members), by avoiding non-consensual contacts with outlaws where possible, and by using force against them only to defend unequivocally just claims.

This essay emerged from an extended conversation involving Sheldon Richman, Brad Spangler, Kevin Carson, Charles Johnson, Roderick T. Long, Thomas Knapp, and others. While none of them is to blame for its final form, it certainly reflects their insights and perhaps even on occasion their choice of language. I am grateful for and honored by the chance to have such thoughtful dialogue partners and friends.