The official demonization of “anarchists” by State propagandizers continues on apace, in this instance by an agent of an “agency”-without-principals which intends to violently evict Occupy protesters from Portland parks this weekend. Meanwhile, a real-life “anarch” (leader of leaderlessness), Wendy McElroy, explores, at the Daily Anarchist, what an anarchist system of justice might look like, and in reply to a comment on her post writes:

At some point, you have to do a comparative assessment and choose the system that does it best rather than does it ‘right’…because there is no right. That’s the horror of violence. It sets the natural order so viciously out of whack that it may not be possible to ever return it to ‘right’. My ideal “just system” is 90% prevention so that you don’t have to deal with raped women, traumatized children, men killed for $10 in their wallets. Imagine a free market law enforcement industry that actually existed to prevent violence, that drew its customer salary from the efficiency with which it managed to prevent violence. What a revolution that would be! Oh Brave New World in which I wish to live.

I contributed the following comments (slightly edited) to the discussion in the comments section on Wendy’s post:

I’ve recently been thinking that anarchic justice should depend on “consensus” rather than “consent,” manifested in a common-law, customary-law kind of system. As John Hasnas has argued, such a system properly understood is free market law. Law is rarely based on consent. The thief caught shoplifting or committing more serious crimes presumably will only rarely “consent” to the consequences imposed by society. It should take a consensus of society to impose any restriction on liberty. Punishments, whether of the restitution or retribution / deterrence / incapacitation variety (and I think the limitations of a restitution-only paradigm are seen in the hypothetical murder of a homeless man with no family or friends to whom restitution for his “wrongful death” might be paid), should likewise be no harsher than a consensus of society approves. Consensus is the social embodiment of the Presumption of Innocence, which is fundamental to a free society. Consensus is only practical in small groups, which points the way to a society of Thomas Jefferson’s “ward republics” and to confederation along the lines of the Great Law of Peace of the Iroquois Confederacy, which operated by consensus.

. . .

It all depends on what the conventions are. Right now the conventions that prevail in society are very unlibertarian. Specifically, these conventions hold the text of a Constitution put together by men long dead for less than noble purposes 200 years ago to be binding on the living, and vulgarly and arbitrarily equate democracy with the will of the majority (even a bare majority of 51%). It seems the goal of libertarianism is precisely to change those conventions. Apparently in contrast to many posters here, I think the so-called Rule of Lenity is a convention at the heart of liberty. So is the Presumption of Innocence. So is the notion that “government” derives its just powers from the “consent of the governed,” but instead of speaking of the “consent of the governed” I’d speak of the “consensus of the self-governing.” If 95%+ of the people in a community agree that it is just to use force to prevent or punish murder that’s a pretty good indication that force is in fact justified to prevent or punish murder, and it’s pretty clear that in any event murder isn’t going to be tolerated by that community. On the other hand, if only 75% agree that it is just to use force to prevent or punish eating magic mushrooms that’s a pretty good indication that force is not justified to prevent or punish eating magic mushrooms, and a society which values consensus and applies societally the same presumption against violence that decent people generally apply as individuals will not use force to prevent or punish eating magic mushrooms, even if, hypothetically, 75% think such force would be justified and 95% think eating magic mushrooms is “immoral.”

. . .

Ideally, the so-called traditional common law, which John Hasnas illuminates as depoliticized law, reflects reason and natural law, and its evolution is likewise guided by reason and natural law. Each case is to be decided on the basis of Justice, informed by how such cases have been decided before.

. . .

I urge all anarchists to give Henry George a second look. Georgism represents a principle by which such claims [to land] may rest not only on force but on justice. I’m of the opinion that in an anarchic society “national defense” (i.e., defense not of a nation but defense from nations) will still be necessary, that such defense will necessarily be defense of a territory by those in the territory, and that Georgism would provide the natural means of funding such defense.

Our Enemy, the State, by Albert Jay Nock, whom I personally regard as my number one libertarian muse, is shot through with Georgism.

. . .

The Hasnas article on “The Depoliticization of Law” is also directly on point: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987829

. . .

Consensus, as I conceive it, is close to or identical with the very essence of anarchism, and of the “libertarian framework.” In the realm of collective action it whittles the use of force down to what Nietzsche called the “song of the necessary,” in the same diatribe in which he called the State the “coldest of all cold monsters.” Unless “we” all agree violence is necessary and justified, “we” don’t use violence.

. . .

I think Justice is most appropriately defined not positively but negatively, as “the absence of crime.” All the things we do to try to fight or deter or somehow provide “satisfaction” for crime are then seen to be “justice” only in a secondary and derivative sense. The criminal defense attorney serves Justice more directly than the prosecutor.

Albert Jay Nock notes what I think is the relevant distinction:

As the word masses is commonly used, it suggests agglomerations of poor and underprivileged people, labouring people, proletarians, and it means nothing like that; it means simply the majority. The mass-man is one who has neither the force of intellect to apprehend the principles issuing in what we know as the humane life, nor the force of character to adhere to those principles steadily and strictly as laws of conduct; and because such people make up the great and overwhelming majority of mankind, they are called collectively the masses. The line of differentiation between the masses and the Remnant is set invariably by quality, not by circumstance. The Remnant are those who by force of intellect are able to apprehend these principles, and by force of character are able, at least measurably, to cleave to them. The masses are those who are unable to do either.

Poverty causes crime, and the State causes Poverty. We should bitch about that rather than bitch about poor people having babies they can’t afford. Thomas Jefferson seems to have understood:

The property of this country is absolutely concentred in a very few hands, having revenues of from half a million of guineas a year downwards. These employ the flower of the country as servants, some of them having as many as 200 domestics, not laboring. They employ also a great number of manufacturers and tradesmen, and lastly the class of laboring husbandmen. But after all there comes the most numerous of all classes, that is, the poor who cannot find work. I asked myself what could be the reason so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands? These lands are undisturbed only for the sake of game. It should seem then that it must be because of the enormous wealth of the proprietors which places them above attention to the increase of their revenues by permitting these lands to be labored. I am conscious that an equal division of property is impracticable, but the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree, is a politic measure and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions or property in geometrical progression as they rise. Whenever there are in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment, but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.

Where there are still peoples, the state is not understood, and is hated as the evil eye, and as sin against laws and customs.

I hold up as support for Nietzsche’s observation the Great Law of Peace of the Iroquois Confederacy and the attitude of the Iroquois to the authoritarian governments brought over by the British colonists, and recommend Charles Mann’s 2005 op-ed in the New York Times on this subject. In his book 1491: New Revelations of the Americas Before Columbus, Mann wrote:

Different nations had different numbers of sachems, but the inequality meant little because all decisions had to be unanimous; the Five Nations regarded consensus as a social ideal. As in all consensus-driven bodies, though, members felt intense pressure not to impede progress with frivolous objections.

John Hasnas correctly observes that “law is rarely grounded in consent.” Rather, what Nietzsche refers to as “laws and customs” are ultimately grounded in consensus.

In consensus, also, appears the social embodiment of the Presumption of Innocence.

Smith, who had been released from custody in 2006 pending the government’s appeal of her case, is expected to return to prison before Christmas, her attorney said.

. . .

Lawrence Daniels, a supervising deputy attorney general who argued the case for restoring Smith’s conviction, said he couldn’t answer questions about the case until he had fully reviewed the 18-page decision.

Smith’s attorney, Michael J. Brennan, said he would file a clemency petition with the state government but that the chances of it being granted were “extremely slim.”

“The attorney general’s office has fought vigorously to reincarcerate her for years. They don’t have the authority to say, ‘Just kidding, she doesn’t have to go back to jail,’ ” Brennan said.

. . .

made me think of this:

Somewhere there are still peoples and herds, but not with us, my brothers: here there are states.

A state? What is that? Well! open now your ears to me, for now I will speak to you about the death of peoples.

State is the name of the coldest of all cold monsters. Coldly it lies; and this lie slips from its mouth: “I, the state, am the people.”

It is a lie! It was creators who created peoples, and hung a faith and a love over them: thus they served life.

Destroyers are they who lay snares for the many, and call it state: they hang a sword and a hundred cravings over them.

Where there are still peoples, the state is not understood, and is hated as the evil eye, and as sin against laws and customs.

This sign I give to you: every people speaks its own language of good and evil, which its neighbor does not understand. It has created its own language of laws and customs.

But the state lies in all the tongues of good and evil; and whatever it says it lies; and whatever it has it has stolen.

Everything in it is false; it bites with stolen teeth, and bites often. It is false down to its bowels.

Confusion of tongues of good and evil; this sign I give you as the sign of the state. This sign points to the will to death! it points to the preachers of death!

All too many are born: for the superfluous the state was created!

See how it entices them to it, the all-too-many! How it swallows and chews and rechews them!

“On earth there is nothing greater than I: I am the governing hand of God.” — thus roars the monster. And not only the long-eared and short-sighted fall upon their knees!

Ah! even in your ears, you great souls, it whispers its gloomy lies! Ah! it finds out the rich hearts which willingly squander themselves!

Yes, it finds you too, you conquerors of the old God! You became weary of conflict, and now your weariness serves the new idol!

It would set up heroes and honorable ones around it, the new idol! Gladly it basks in the sunshine of good consciences, — the cold monster!

It will give everything to you, if you worship it, the new idol: thus it buys the lustre of your virtue, and the glance of your proud eyes.

Through you it seeks to seduce the all-too-many! Yes, a hellish artifice has been created here, a death-horse jingling with the trappings of divine honors!

Yes, a dying for many has been created here, which glorifies itself as life: verily, a great service to all preachers of death!

The state, I call it, where all drink poison, the good and the bad: the state, where all lose themselves, the good and the bad: the state, where the slow suicide of all — is called “life.”

Behold the superfluous! They steal the works of the creators and the treasures of the wise. Education, they call their theft — and everything becomes sickness and trouble to them!

Behold the superfluous! They are always sick; they vomit their bile and call it a newspaper. They devour each other and cannot even digest themselves.

Behold the superfluous! They acquire wealth and become the poorer for it. They seek power, and the lever of power, much money — these impotent ones!

See them clamber, these nimble apes! They clamber over one another, and thus pull each other into the mud and the abyss.

They all strive for the throne: this is their madness — as if happiness sat on the throne! Often filth sits on the throne. — and often also the throne on filth.

Madmen they all seem to me, and clambering apes, and too eager. Foul smells their idol to me, the cold monster: foul they all smell to me, these idolaters.

My brothers, will you suffocate in the fumes of their maws and appetites! Better to break the windows and jump into the open air!

Escape from their foul stench! Escape from the idolatry of the superfluous!

Escape from their foul stench! Escape from the steam of these human sacrifices!

The earth is yet free for great souls. There are still many empty sites for the lonesome and the twosome, surrounded by the fragrance of tranquil seas.

A free life is yet possible for great souls. He who possesses little is that much less possessed: blessed be a little poverty!

There, where the state ends — there only begins the man who is not superfluous: there begins the song of the necessary, the single and irreplaceable melody.

There, where the state ends — look there, my brothers! Do you not see it, the rainbow and the bridges of the Overman?

Thus spoke Zarathustra.