A few motives inspired this recent sally:

1. My recent inquiry into whether Scalia’s view of the original meaning of the Double Jeopardy Clause is justified called my attention to the fact that the SCOTUS cites Blackstone about 10 times a year to support their notions of the Constitution’s original meaning. It occurred to me that it might be useful to see for myself what the law was when the Constitution was first proclaimed by its partisans to be the law of the land.

2. The Commentaries are all about the common law, and my view, borrowed from John Hasnas, is that an evolved and depoliticized common law would constitute the most promising and viable foundation for a justice “system” in a free (i.e., anarchic) society. I thought I might come across some old ideas that were better than today’s old ideas. (I’ve been somewhat disappointed to see, therefore, that Blackstone was also, in his Commentaries, a big cheerleader for the prerogatives of King and Parliament.)

3. Being prone to romanticize the Old West, it interested me to learn that Blackstone was pretty much the only law school and the only law library lawyers and judges had on the frontier. If four volumes of law sufficed then, maybe it would suffice now.

Thomas Jefferson, on the other hand, wasn’t a fan of Blackstone, writing in a letter to Judge John Tyler in 1810:

I have long lamented with you the depreciation of law science. The opinion seems to be that Blackstone is to us what the Alcoran is to the Mahometans, that everything which is necessary is in him, and what is not in him is not necessary. I still lend my counsel and books to such young students as will fix themselves in the neighborhood. Coke’s institutes and reports are their first, and Blackstone their last book, after an intermediate course of two or three years. It is nothing more than an elegant digest of what they will then have acquired from the real fountains of the law. Now men are born scholars, lawyers, doctors; in our day this was confined to poets. You wish to see me again in the legislature, but this is impossible; my mind is now so dissolved in tranquillity, that it can never again encounter a contentious assembly; the habits of thinking and speaking off-hand, after a disuse of five and twenty years, have given place to the slower process of the pen. I have indeed two great measures at heart, without which no republic can maintain itself in strength.

1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom.
2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it.

But this division looks to many other fundamental provisions. Every hundred, besides a school, should have a justice of the peace, a constable and a captain of militia. These officers, or some others within the hundred, should be a corporation to manage all its concerns, to take care of its roads, its poor, and its police by patrols, &c., (as the select men of the Eastern townships.) Every hundred should elect one or two jurors to serve where requisite, and all other elections should be made in the hundreds separately, and the votes of all the hundreds be brought together. Our present Captaincies might be declared hundreds for the present, with a power to the courts to alter them occasionally. These little republics would be the main strength of the great one. We owe to them the vigor given to our revolution in its commencement in the Eastern States, and by them the Eastern States were enabled to repeal the embargo in opposition to the Middle, Southern and Western States, and their large and lubberly division into counties which can never be assembled. General orders are given out from a centre to the foreman of every hundred, as to the sergeants of an army, and the whole nation is thrown into energetic action, in the same direction in one instant and as one man, and becomes absolutely irresistible. Could I once see this I should consider it as the dawn of the salvation of the republic, and say with old Simeon, “nunc dimittas Domine.” But our children will be as wise as we are, and will establish in the fulness of time those things not yet ripe for establishment.

I myself have three great measures at heart, without which no man’s freedom is secure:

1. To divide every county into hundreds.

2. To replace all taxes with a single tax on the unimproved value of land.

3. To replace all legislators and judges with a common law system whose decisions and evolution are determined by juries educated in the law.

I’ve noted before that I interpret the trajectory of my life, from my enlistment in the Navy at age 17, to my early interest in the so-called Great Books of the Western World, to my conversion to Roman Catholicism, to my decision to go to law school, to my conversion to Quakerism, as a quest to understand and participate more deeply in the common sense and common wisdom of the society in which I live and from which I grew. Indeed, I can directly trace my gradual conversion to philosophical anarchism back to a conscious decision I made about 7 or so years ago to study and consider more closely the American Revolution and the establishment of the Constitution. As I recall, the first book I read in this endeavor was Bernard Bailyn’s The Ideological Origins of the American Revolution and the second book I read was Founding Father: Rediscovering George Washington by Richard Brookhiser.

It’s been said that everything worth saying has already been said. There is nothing new under the sun. Our thoughts aren’t as original as we think. If I quote some luminary from the past, as I quoted Thoreau in my previous post, it’s probably partly because he’s said what I think better than I ever could and partly because I value and wish to invoke a tradition that unites us. I remember our class being assigned to read Thoreau (and not just Walden) by a public school teacher in the public high school I attended. My instincts are the opposite of heretical. I regard myself as a true disciple of the one true and self-evident religion. A “radical,” etymologically, is simply one who is drawn to the “root” of the matter. Where are the branches united if not at the root?

A note on Thoreau’s “Slavery in Massachusetts,” which I quoted at length in my last post: A modern reader might be inclined to think Thoreau’s essay not relevant today, since he was writing about the Fugitive Slave Law, and we have abolished Slavery. To the contrary, Thoreau was writing about an enormity committed by the State against a single man:

For my part, my old and wor­thi­est pur­suits have lost I can­not say how much of their at­trac­tion, and I feel that my in­vest­ment in life here is worth many per cent less since Mas­sa­chu­setts last de­lib­er­ately sent back an in­no­cent man, Anthony Burns, to slav­ery.

We are fools if we cannot point to similar enormities deliberately and openly in the light of day committed against innocent men by the State and with our “consent” in the past year. Do we really imagine ourselves to be so much better than Thomas Jefferson or George Washington, or than the citizens of Massachusetts who suffered Anthony Burns to be robbed by a judge of his very freedom?

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.

A comment by Ryan from Absurd Results on this post about the Georgist “Single Tax” and Thomas Jefferson’s “Ward System” gave me the opportunity to once again formulate, summarize, and clarify my political wish list. Ryan wrote:

As for Georgism, I have to admit, I find it intriguing—even more so when combined with Jefferson’s ward system. Actually, I think the ward system (which sounds a lot like Michael Rozeff’s panarchy) would be essential for a single tax regime, for it would more likely keep closed the door to statism by making the wards compete for citizens.

Still, the ward system worries me a little because the political class—that is, those that have the power to tax, taken collectively—has a knack for finding ways to expand its jurisdiction. It’s for this reason that I’m partial to Hans Hoppe’s notion of a private law society. Under his conception, security is provided on a subscription basis instead of on a jurisdictional basis. This takes a so-called “public good” like security and moves it into the private sphere, thereby eliminating the need for taxation. I have to think that by taking away the two hallmarks of Statism—taxation and jurisdiction—freedom would flourish.

I replied [links added]:

I’m not sure that even under conditions of “anarchy,” or a state of nature, that we could get away from the need for territorial defense, security, and “government.” A single landlord, or landholder, is in a sense a “government,” claiming jurisdiction over a particular territory, and having the need to secure his claim. By what right would he maintain his claim? I’d suggest that Georgism might form the conditions for establishing the justice of his claim vis-a-vis other landholders and would-be landholders in the immediate area, as well as the fund by which the people in that area might defend their claims relative to each other and relative to external threats. The need for so-called “national defense” is to my mind the strongest objection to anarchism (though I’d clarify it’s not so much the need to defend the “nation” as it is to defend a would-be anarchic territory from existing nations). The anarchic impulse, and the impulse of the ward system, is to devolve the authority and responsibility for such defense to smaller and smaller areas, ultimately vesting it in the individual landholders themselves, who would likely find it advisable to confederate with others for their mutual defense, keeping their confederacies as small as is consistent with the needs of territorial defense (recognizing that the larger the confederacy and the more concentrated its power the larger the threat to the freedoms of its constituents). As I see it, these base-line confederacies formed strictly for territorial defense could co-exist with the kinds of associations and private law systems envisioned by Rozeff’s panarchy.

I have to credit “Our Enemy, the State,” by Albert Jay Nock, who considered himself an anarchist, for selling me on both Georgism and Jefferson’s “ward system.”

How might we ever get from here to there? First and foremost, by puncturing the pretensions of the State. And I can think of no better authority to quote on this score than Martin Luther King, Jr., for whom a federal holiday is named for Christ’s sake:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

There has never been a saner and simpler proposal for tax reform than the “single tax” on the unimproved value of land proposed by Henry George. The honest progressive and the honest capitalist alike would find in it, if they looked, a facilitator of their respective instincts. Most importantly, in stark contrast to the abomination that is “our” politician-created tax “code,” the “single tax” has its sure foundation in Justice, as illuminated by, among others, Thomas Paine.

Combine the “single tax” with Thomas Jefferson’s “ward system” and you have my political philosophy in a nutshell.

What is it that I find admirable and worthy of emulation in the Great Law of Peace of the Iroquois Confederacy? Pretty much the same things I find admirable and worthy of emulation in Aldous Huxley’s vision of a just society:

If I were now to rewrite the book [Brave New World], I would offer the Savage a third alternative. Between the Utopian and primitive horns of his dilemma would lie the possibility of sanity… In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque and co-operative. Science and technology would be used as though, like the Sabbath, they had been made for man, not (as at present and still more so in the Brave New World) as though man were to be adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End, the unitive knowledge of the immanent Tao or Logos, the transcendent Godhead or Brahman. And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which the Greatest Happiness principle would be secondary to the Final End principle – the first question to be asked and answered in every contingency of life being: “How will this thought or action contribute to, or interfere with, the achievement, by me and the greatest possible number of other individuals, of man’s Final End?”

See also the following letters written by Thomas Jefferson:

The Earth Belongs to the Living (1789)

“A Real Christian” (1816)

The Ward System (1816)

The Test of Republicanism (1816)

Reform of the Virginia Constitution (1816)

“I Too Am An Epicurean” (1819)

What I mean by describing myself as a Christian Deist is illuminated by the following two articles, my discovery of which online was prompted by my discovery in a bookstore yesterday of Tolstoy’s The Gospel in Brief:

Thomas Jefferson’s Bible and the Gospel of Thomas

On Leo Tolstoy’s Gospel in Brief

I happen to “believe,” based on my own fallible reasoning, that Jesus, inter alia, was born of the Virgin Mary and rose from the dead, but I don’t pretend to believe those things beyond a reasonable doubt, and to the contrary am convinced beyond a reasonable doubt that “salvation” doesn’t depend on such things, but rather on realizing the divinity within and without. When at around age eighteen I was confirmed in the Roman Catholic Church a couple weeks after being baptized, I chose Thomas, who is described in the Gospel of John as doubting that Jesus rose from the dead until seeing the risen Christ for himself, as my confirmation name. Nowadays, more than two decades later, I no longer believe in the authority of the Church, and am inclined to believe that the most “authoritative” of the gospels is the non-canonical Gospel of Thomas, according to which Jesus said, among other things:

If your leaders say to you, ‘Look, the (Father’s) kingdom is in the sky,’ then the birds of the sky will precede you. If they say to you, ‘It is in the sea,’ then the fish will precede you. Rather, the kingdom is within you and it is outside you. When you know yourselves, then you will be known, and you will understand that you are children of the living Father. But if you do not know yourselves, then you live in poverty, and you are the poverty.

. . .

Don’t lie, and don’t do what you hate, because all things are disclosed before heaven. After all, there is nothing hidden that will not be revealed, and there is nothing covered up that will remain undisclosed.

. . .

Have you found the beginning, then, that you are looking for the end? You see, the end will be where the beginning is. Congratulations to the one who stands at the beginning: that one will know the end and will not taste death.

. . .

Love your friends like your own soul, protect them like the pupil of your eye.

. . .

I took my stand in the midst of the world, and in flesh I appeared to them. I found them all drunk, and I did not find any of them thirsty. My soul ached for the children of humanity, because they are blind in their hearts and do not see, for they came into the world empty, and they also seek to depart from the world empty. But meanwhile they are drunk. When they shake off their wine, then they will change their ways.

. . .

If the flesh came into being because of spirit, that is a marvel, but if spirit came into being because of the body, that is a marvel of marvels. Yet I marvel at how this great wealth has come to dwell in this poverty.

. . .

Be passersby.

. . .

Whoever has come to know the world has discovered a carcass, and whoever has discovered a carcass, of that person the world is not worthy.

. . .

Look to the living one as long as you live, otherwise you might die and then try to see the living one, and you will be unable to see.

. . .

Those who know all, but are lacking in themselves, are utterly lacking.

. . .

If you bring forth what is within you, what you have will save you. If you do not have that within you, what you do not have within you [will] kill you.

. . .

I am the light that is over all things. I am all: from me all came forth, and to me all attained. Split a piece of wood; I am there. Lift up the stone, and you will find me there.

. . .

Images are visible to people, but the light within them is hidden in the image of the Father’s light. He will be disclosed, but his image is hidden by his light.

. . .

When you see your likeness, you are happy. But when you see your images that came into being before you and that neither die nor become visible, how much you will have to bear!

. . .

How miserable is the body that depends on a body, and how miserable is the soul that depends on these two.

. . .

Why do you wash the outside of the cup? Don’t you understand that the one who made the inside is also the one who made the outside?

. . .

Whoever drinks from my mouth will become like me; I myself shall become that person, and the hidden things will be revealed to him.

. . .

The heavens and the earth will roll up in your presence, and whoever is living from the living one will not see death.

. . .

[The kingdom] will not come by watching for it. It will not be said, ‘Look, here!’ or ‘Look, there!’ Rather, the Father’s kingdom is spread out upon the earth, and people don’t see it.

Anarchy is not chaos. It’s “rulerlessness.” It’s not something unheard of in the modern world. In fact, it’s the prevailing condition of international relations between so-called “sovereign” states (despite the United States’ longstanding propensity to act as if it’s the world’s ruler). It’s the principle behind the vaunted “balance of powers” supposedly built into the U.S. Constitution (though this principle is itself unfortunately “balanced” in the Constitution by other elements aiming towards the concentration of power).

If anarchy prevails in the relationships between the nation-states of the world, why could it not prevail between the States of these United States? Between the counties making up these States? Between the townships making up these counties? (One might expect such self-governing townships to ally with other townships for their common defense, just as nation-states make treaties with each other today.) Indeed, Thomas Jefferson idealized just such a radical decentralization of power as governance at its most optimal.

It’s a testament to the effectiveness of centuries of statist propaganda that I can’t think of another word in the English language for anarchy that doesn’t connote chaos.

It’s true, as Scott observes with respect to what’s going on in Egypt today, that “Nature abhors a vacuum.” But it was the outgrown size of the Egyptian State combined with its unacceptability to the Egyptian people which is responsible for the size of the vacuum its disintegration is leaving. By monopolizing and concentrating power unto itself, the State makes itself appear indispensable. A thoroughly Jeffersonian polity would not have left such a vacuum, and indeed would not have so easily disintegrated.

Like Scott, “I’m neither wise enough nor knowledgeable enough to have a view worthy of expressing on what’s happening in Egypt.” So I turn to Wikipedia, that first resort of ignoramuses everywhere:

While in office, political corruption in the Mubarak administration’s Ministry of Interior has risen dramatically, due to the increased power over the institutional system that is necessary to secure the prolonged presidency^{[clarification needed]}. Such corruption has led to the imprisonment of political figures and young activists without trials,^[20] illegal undocumented hidden detention facilities,^[21][22] and rejecting universities, mosques, newspapers staff members based on political inclination.^[23] On a personnel level, each individual officer are allowed to violate citizens’ privacy in his area using unconditioned arrests due to the emergency law.

. . .

Egypt is a semi-presidential republic under Emergency Law (Law No. 162 of 1958)^[25] and has been since 1967, except for an 18-month break in 1980s (which ended with the assassination of Sadat). Under the law, police powers are extended, constitutional rights suspended and censorship is legalized.^[26] The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.^[27] Under that “state of emergency”, the government has the right to imprison individuals for any period of time, and for virtually no reason, thus keeping them in prisons without trials for any period.

So, even if we admit that the current state of anarchy in Egypt is attended by a certain measure of (hopefully temporary) chaos, might not even chaos be preferable to what the Egyptians were living under just a few days ago? The Egyptian people by their actions seem to think so. So why not “applaud” it?

I have learned from the TV a couple things about what’s happening in Egypt. I saw small groups of people organizing themselves to defend effectively their own neighborhoods from looters. This is where, as Jefferson recognized, “government” should begin, and where it should ultimately repose. Ironically, the Egyptians who spontaneously joined together to defend Egypt’s ancient treasures from looters and whom Scott applauded as heroes in his post for “standing between history and anarchy” are themselves wonderful living proof that people don’t need the State to defend the things they care about.