Friday, June 11, 2010

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.

Monday, June 7, 2010

Any (Good) Thing the State Can Do, We Can Do Better

The question whether people in a stateless society could respond satisfactorily to a disaster like the BP oil spill is really just a special case of the general question whether people without the state can do the things people attempt to do through the state. It seems to me that the answer is “yes.”

That’s because everything the state purportedly does is actually done by people. Sometimes they act out of fear; sometimes out of the perception that the state is legitimate; sometimes what the state commands turns out to be just what they want to do anyway; and sometimes because they believe that what the state is asking them to do is just what they are morally required to do anyway. But, for whatever reason, they do it.

This fact ought to be sufficient to make us confident that ordinary people, cooperating peacefully, can deal with environmental or other disasters in a stateless society. In what follows, I briefly discuss the purported advantages the state might be thought to possess in dealing with large-scale problems before noting some ways in which people in a stateless society could cooperate to prevent or remedy a disaster like the one currently taking place in the Gulf.

The State’s Supposed Advantages

What might be thought to give the state an advantage over the various non-state institutions of a stateless society? Statists are most likely to point to two kinds of factors: information and force. A third, concerned with a potential difficulty faced by a non-state legal system relying on tort law to deal with environmental harms, might also be highlighted by some statists.

Informational Advantages?

Statists often think the state has information that ordinary people lack. But to the extent that this information concerns optimal production levels and distribution patterns for goods and services, we know as confidently as we know anything about economics that more information is distributed throughout a given economic environment, possessed by various actors as a matter of “local knowledge.” Polycentric processes that mobilize this local knowledge will ultimately prove more effective than top-down, hierarchical ones at aggregating relevant information.

Statists might suggest that the state had an important role to play, not so much because it possessed information relevant to consumption and production, but because it possessed access to expert information. The assumption here seems to be that experts know just what needs to be done about a given problem but, because ordinary people aren’t convinced, the options are either to let nothing be done about a serious problem or to impose the will of the experts. Clearly, there are problems here related both to the ignorance of experts and to the right of people to make mistakes.

But here the question is how information comes to be classified as expert, and how it is used by the state. Political processes clearly affect the selection of experts and the assessment of the information they provide. Further, given both the potential abuse of expertise as a rationalization for authoritarianism, and the inherent value of personal autonomy, it does not seem as if the conclusions of particular experts ought to be imposed on people without their consent. There are, it seems, side constraints on the use of expert authority whatever its potential value. Finally, if expert claims are accurate, why can they not be winnowed by public evaluation—in the course of conversations in which other experts from outside the political process, as well as ordinary people able to employ their common sense, are free to participate?

Advantages Reflective of the State’s Monopoly of Force?

If purported informational advantages provide no reason to think that the state is better equipped to aid us in, for instance, responding to natural disasters, what about its capacity to use force to compel people to cooperate? As I’ve already suggested, the vast majority of instances of cooperation with or under the direction of the state do not reflect any immediate threat or application of force. Instead, they reflect people’s sense of the moral or prudential appropriateness of doing as the state directs.

Sometimes, of course, people may cooperate voluntarily, but only because they believe that others will do so, too, under the background threat of compulsion by the state. But there is no reason no to think that a combination of social norms and advance agreements (cp. David Schmidtz’s discussion of “assurance contracts”) could not in many cases foster the needed cooperation in the absence of threatened force.

I’m inclined to think that there are very few, if any, pure public goods, and it’s not clear to me that any environmental good we could currently affect would count as one. But, if there are any, it seems to me both that (i) as Schmidtz suggests, there are interesting market-based ways of providing at least some of them and (ii) the difficulties associated with alternatives mean that there’s no good reason to prefer coercive solutions to market-based ones. For if worthwhile cooperation is not forthcoming in some cases in which we wish it might be, we must still recall that the state is not, never has been, and never will be directed by angels, that instituting an organization with monopolistic control over the use of force in a given region opens up enormous possibilities for violence, abuse, cronyism, depredation, and dispossession. In short, while there may be failures of cooperation, the costs associated with these failures must be compared to the costs associated with failures on the part of monopolistic states.

Sometimes, of course, people will grudgingly obey the state only because of the its threats of violence. The fact that these threats would not be available in a stateless society does not seem like a particular loss. For it is almost certain that, in cases in which people only obey out of fear, they see little or not independent reason to do whatever it is the state wants them to do, and we have good reason to be glad, therefore, that they will not be forced to do similar things in the state’s absence.

The Advantage of Being Able to Bypass the Need to Delineate Lines of Causal Responsibility in Dealing with Environmental Problems?

One final reason that might be advanced for adopting the view that the state was better positioned to deal with certain kinds of environmental problems than free people engaged in peaceful cooperation is the difficulty of identifying relevant causal connections between particular actions and environmental harms. If something like tort law is to be used to compensate victims of harms (as many anarchists suppose it should be) and if the prospect of compensation is expected to play a key role in deterring violators, but if there is no clear way of identifying the actual cause of a harm, will numerous harms go undeterred and uncompensated?

Suppose, for instance, that anthropogenic global warming is occurring and poses a serious hazard to present and future generations. Suppose, too, that we can be reasonably sure that certain classes of human actions contribute in a general way to AGW. It is hard to see how we might identify particular actors as liable for causing particular AGW-related harms, so it’s unclear how an ordinary tort regime would help here.

There are, I think, at least three non-exclusive possibilities open to us here. First, something like an expanded class action lawsuit could be permitted exclusively in such cases, in which classes of plaintiffs could sue classes of potential perpetrators. It would still be necessary to demonstrate a causal connection between a class of actions and a class of harms, and to demonstrate the extent of the harms. Second, while a full-blown tort regime treating environmental pollution and similar phenomena as common-law nuisances, combined with specific property rights in particular regions and ecosystems now claimed en masse by the state, might not (if the first option just mentioned were ruled out as unjust) provide compensation for past harms, it could perfectly well make possible a thoroughgoing system of restraint on pollutants imposed by newly empowered property owners. Third, a thoroughgoing system of social norms could limit the activity of polluters and secure compensation for victims (especially in cases in which harm was clear but causation impossible clearly to demonstrate, but in which demonstrating causation was required for legal liability. Thus, if there was widespread agreement on the reality and causes of AGW, or any other environmental harm, people freely and peacefully cooperating could identify ways of stopping or slowing the occurrence of the relevant causes and compensating victims.

In short, any good thing the state can do, we can do better. What we do will be done more efficiently, because we can draw on bottom-up knowledge. And we will also spend our resources efficiently because the decision whether to employ them at all will be ours, not that of a group of economic and political elites who can externalize the costs of satisfying their preferences onto ordinary people.

Large-Scale Environmental Disaster in a Stateless Society

How could people in a stateless society deal with challenges like those caused by the BP disaster?

The Importance of Property Rights or Their Equivalent

The first thing to do, clearly, is to assign responsibility—to assign particular places to particular people. This needn’t mean assigning those rights to individuals for commercial exploitation; it just means that something like the Gulf—a place, a region, an ecosystem—needs to be in someone’s hands. Someone might be seeking to develop the region commercially. But someone might just as well be interested in preserving it, planning to limit or entirely prohibit commercial use. Whatever the projected use, an individual, cooperate, partnership, non-profit, or business firm with ownership rights can be expected to care for the owned space.

To be sure, there’s no guarantee that the allocation of rights to, say, the Gulf (on the basis of active homesteading or prior customary possession or something similar—certainly not on the basis of allocation by the state, which has no title to anything and is all too likely to favor its cronies) will result in its being put to the predetermined use preferred by any group, noncommercial or commercial. There is good reason to believe that, as a general rule, if people own things, they will care for those things, but their objectives may vary (though of course there may be a general consensus that can be enforced through ordinary social norm maintenance mechanisms).

Just as groups like the Nature Conservancy buy up currently privately held property in the US, they would likely be willing to homestead unowned property in the Gulf. I’d expect a fair amount of this sort of thing, though it would obviously be important to figure out ways of preventing title from being established just by announcement while also not requiring commercial cultivation if that’s not what someone wants.

And commercial homesteading certainly could and would occur, too. A stateless society would doubtless feature a mixture of both. But, in any case, if there were specific property owners to whom liability would be owed in the case of spills, rather than politicians often indebted precisely to the entities doing the spilling, things would surely be different to some extent, whatever the nature of the property-owners’ interests in the property.

Mechanisms for Protecting the Interests of Nonhuman Sentients

If your goal is protecting, not geographically fixed spaces, but rather mobile organisms, say, within those spaces (sea turtles, for instance), then enabling anyone to take on a case (for, e.g., a sea turtle) and recoup salary and expenses when successful in court (thus functioning as something like what is today called a “private attorney general”) would do the trick. Whether this option would or should be available would depend, obviously, on the existence of a social consensus regarding non-humans. If most people don’t think sea turtles—individually or collectively—ought to be protected, they won’t be. If they are to be protected, though, it’s easy to envision the kinds of mechanisms a stateless society could use to protect them.

Protection of Ecosystems by Property Owners

Whether individual owners were responsible, or whether those—for instance—along the shoreline controlled the Gulf (or any other ecosystem) as common property, or whatever, specific owners not in the pockets of oil companies would have to decide to allow drilling to take place, and they could obviously take whatever preventive measures they wanted, including prohibiting drilling, requiring performance bonds, requiring on-site inspections, etc.

Is the State a Desirable Alternative, Even Absent Optimal Protection by Private Owners?

If particular individuals or groups didn’t control a particular ecosystem, the alternative would seem to be some sort of state-like entity. Any institution capable of forcibly implementing ex ante environmental regulations on unowned property or on the property of others (however property ought to be handled in this and other cases) would seem to be altogether too much like a state, and its creation and maintenance highly dangerous, and likely unjust.

Regulating Ecosystems without the State

If there is a property regime in a given ecosystem, specific owners—individuals, for-profit firms, or non-profits—could preempt or regulate conduct that might be environmentally harmful as they liked (and would be liable if spills moved beyond their property to that of others). And if there is no such regime, one is likely to emerge. The alternative is a state, or something like it; we have no good reason to want that, and a regime of voluntary cooperation in which people use their individual or group property interests to protect ecosystems seems perfectly workable. Environmental challenges can be satisfactorily addressed by a combination of voluntary, peaceful cooperation and robust tort liability. Statist and quasi-statist alternatives are neither necessary nor appealing.