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.

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.

That’s a thin reed indeed, and in fact I see no separation whatsoever. Anarchy prevails betwixt the governments of the world. What is an individual laying claim to a house and a yard but a little government? My prescription for what ails the world: balkanization (all the way down to that schlub in his castle) and confederation mediated by Georgism.

As for the kind of legal “systems” such balkanized confederacies should form, I’m partial to John Hasnas’ argument in The Depoliticization of Law:

Advocates of the privatization of law often assume that unless law
springs from some act of agreement, some express or implicit social
contract by which individuals consent to be bound, it is nothing
more than force. In this Article, I argue that this is a false dilemma.
Although law is rarely grounded in consent, this does not imply that
law necessarily gives some individuals command over others. Law
can arise through a process of evolution. When this is the case, those
subject to law are indeed bound, but not by the will of any particular
human beings. Although this depoliticized law is inherently coercive, it
is not inherently a vehicle for domination. This Article argues that such
a system of depoliticized law is consistent with the ideal of the rule
of law, and, in fact, is free market law, when that phrase is properly
understood.

The first Leftists were a group of newly elected representatives to the National Constituent Assembly at the beginning of the French Revolution in 1789. They were labeled “Leftists” merely because they happened to sit on the left side in the French Assembly.

The legislators who sat on the right side were referred to as the Party of the Right, or Rightists. The Rightists or “reactionaries” stood for a highly centralized national government, special laws and privileges for unions and various other groups and classes, government economic monopolies in various necessities of life, and a continuation of government controls over prices, production, and distribution.

. . .

The majority of the original Party of the Left had been opposed to concentrated power regardless of who exercised it. But the violent revolutionists in their midst, led by Robespierre, Danton, and Marat, were opposed to concentrated power only so long as someone else exercised it. Robespierre, who represented himself as spokesman for the people, first said that the division of the powers of government was a good thing when it diminished the authority of the king. But when Robespierre himself became the leader, he claimed that the division of the powers of government would be a bad thing now that the power belonged “to the people.”

. . .

Most of the original Leftists protested. So they too were soon repudiated in the general terror that was called liberty. But since the name Leftist had become identified with the struggle of the individual against the tyranny of government, the new tyrants continued to use that good name for their own purposes. This was a complete perversion of its former meaning.

I revere Leo Tolstoy as a great and exemplary man not only for his principled anarchism and non-dogmatic Christianity, but also for his enthusiastic endorsement later in life of the “Single Tax” advocated by Henry George, as described by Tolstoy’s personal friend and secretary Victor Lebrun:

In giving his extreme and sympathetic attention to other thinkers and writers, the great Tolstoy differed essentially from his colleagues — the geniuses of all countries and all centuries. But nothing shows the complete honesty and surprising liberty of his spirit more than his attitude towards Henry George.

It was at the beginning of 1885 that he happened to lay his hands on the books of the great American sociologist. By then the moral and social doctrine of the thinker had been solidly and definitely established. Man’s supreme and unique duty was to perfect himself morally and not to co-operate with the wrong. Thus the social problem would be automatically solved when the majority has understood the true meaning of pure Christianity and when it has learned to abstain from all crimes which are frequently and commonly committed. All reasoning about the precise nature of the citizens’ rights, about laws, about the organisation of governmental compulsion for their protection is anathema to the great thinker.

But … hardly had Tolstoy had a glance at “Social Problems” and “Progress and Poverty” and he was completely captivated by George’s outstanding exposition.

. . .

And the thinker does not hesitate any longer. From this encounter on he resolutely and enthusiastically takes George’s side, and to his last breath for a quarter of a century, he makes every effort without relaxation to make his discovery known.

Georgetown professor John Hasnas wrote in The Obviousness of Anarchy a couple things I’ve tried to say on this blog:

Anarchy refers to a society without a central political authority. But it is also
used to refer to disorder or chaos. This constitutes a textbook example of Orwellian
newspeak in which assigning the same name to two different concepts effectively
narrows the range of thought. For if lack of government is identified with the lack of
order, no one will ask whether lack of government actually results in a lack of order.
And this uninquisitive mental attitude is absolutely essential to the case for the state.
For if people were ever to seriously question whether government is really productive
of order, popular support for government would almost instantly collapse.

. . .

No one believes that we can transition from a world of states to
anarchy instantaneously. No reasonable anarchist advocates the total dissolution of
government tomorrow. Once we turn our attention to the question of how to move
incrementally from government to anarchy, it becomes apparent that national defense
would be one of the last governmental functions to be de-politicised. If my argument
for anarchy is flawed and anarchy is not a viable method of social organisation, this
will undoubtedly be revealed long before doing away with national defense becomes
an issue. On the other hand, to the extent that the gradual transition from government
to anarchy is successful, the need for national defense continually lessens.

David Gross at The Picket Line links to a good meditation on the dangers of lifestyle purity perfectionism by Claire Wolfe, who writes:

Kitty Antonik Wakfer whacks all of us who say we support WikiLeaks and Bradley Manning, but who haven’t cancelled our Amazon and PayPal accounts or cut up our MasterCards and Visas.

. . .

Now, I don’t know Kitty Antonik Wakfer. She may be a terrific human being. I hope she is. Her heart’s in the right place.

But I would ask all the “more pure than thou” freedomistas of the world: Have you walked a few years in my shoes?

. . .

For 15 years, I increasingly lived according to my principles. I did those hard things. Went without numbers and ID. Became an exile in my own land. Got by with a little help from my friends (and sometimes a lot of help from them). And every one of those friends was less “pure” than I; but they should kick my ass if I ever have enough nerve to damn them for their lack of purity.

. . .

I no longer live like that. Got tired. Went broke. Became weary of being an outcast — weary of knowing I’d have to fight through every little tiny thing that others take for granted. I’m older and ready for a little calm and comfort. I don’t regret one minute of trying to live free. I’m glad I did it. But it didn’t make the world freer. And for me, that time is done.

. . .

Thing is, even in my most hardcore days, I wasn’t as “pure” as some folks. Go to the Mental Militia forums and look up the postings of suijurisfreeman if you really want to see hardcore. And I defy anybody to find me one, single freedomista on this earth who never violates a principle — never pays a sales tax for a purchase, lives on property which is neither taxed nor subsidized, totally ignores the existence of the state and all its works, drives boldly down the highway sans license and registration and doesn’t bother to stop when the red light flashes in the rear window because to stop would be to obey the unjust state. Show me the person who goes through life without a single compromise of principle. Show me.

. . .

And unless you are that perfectly pure person whose life is the epitome of principle every moment of every day, then don’t go around condemning others for failing to take a step that you consider proper and necessary — but that also doesn’t cause you any huge inconvenience.

Tolstoy said it better:

All men are brought up to the habit of obeying the laws of the state before everything. The whole existence of modern times is defined by laws. A man marries and is divorced, educates his children, and even (in many countries) professes his religious faith in accordance with the law. What about the law then which defines our whose existence? Do men believe in it? Do they regard it as good? Not at all. In the majority of cases people of the present time do not believe in the justice of the law, they despise it, but still they obey it. It was very well for the men of the ancient world to observe their laws. They firmly believed that their law (it was generally of a religious character) was the only just law, which everyone ought to obey. But is it so with us? we know and cannot help knowing that the law of our country is not the one eternal law; that it is only one of the many laws of different countries, which are equally imperfect, often obviously wrong and unjust, and are criticised from every point of view in the newspapers. The Jew might well obey his laws, since he had not the slightest doubt that God had written them with his finger; the Roman too might well obey the laws which he thought had been dictated by the nymph Egeria. Men might well observe the laws if they believed the Tzars who made them were God’s anointed, or even if they thought they were the work of assemblies of lawgivers who had the power and the desire to make them as good as possible. But we all know how our laws are made. We have all been behind the scenes, we know that they are the product of covetousness, trickery, and party struggles; that there is not and cannot be any real justice in them. And so modern men cannot believe that obedience to civic or political laws can satisfy the demands of the reason or of human nature. Men have long ago recognized that it is irrational to obey a law the justice of which is very doubtful, and so they cannot but suffer in obeying a law which they do not accept as judicious and binding.

(Scalia has said as much too, taking it to an absurd and self-contradictory conclusion.)

But such an understanding, although necessary, is not sufficient for a real anarchist. After all, a relatively enlightened man might recognize that the modern State is of no authority and yet still support its dominance and power as a “necessary evil.”

Anarchy, etymologically, means leaderlessness. [Thomas Knapp notes here that he understands anarchy to entail “rulerlessness,” not “leaderlessness,” and that there’s a difference. My clarification is here.] Anarchism supposes that such “leaderlessness” rather than the Hobbesian dominance of a leading power is the fundamental condition of peace and justice. It therefore entails in the political context the distribution and balance of power, as well as the rejection of authority. An “ideal” world of individuals in which power was completely distributed and balanced equally among them (i.e., a world approximating albeit more ideal than the “state of nature”) would be a world in which rights were absolutely secure, since no individual would have the power to overcome the rights of any other. But in the real world one man will have more power than another and enough to overcome his rights, or may conspire with other men to do so. To guard against this threat men may associate or contract with others to balance the threat. But if their true purpose in doing so is only to secure their own rights, and not to conspire to violate rights themselves, their associations will tend to maintain (both internally and externally) as much of the state of nature’s indigenous “leaderlessness” and equilibrium as possible. Randy Barnett has suggested one way in which this tendency might work out in the real world:

Some libertarians prefer a different legal structure, one that promises to work better than the structure provided by the Constitution. Such a structure would take the principles or strategies embodied in the Constitution farther than did the Framers. These principles are (1) reciprocity of power between the ruler and the ruled that is supposed to be accomplished by voting, (2) checks and balances on power that are supposed to result from federalism and separation of powers, and (3) the power of exit that is provided by free emigration and, formerly, the power of secession. These libertarians merely propose two itsy-bitsy, teeny-weenie changes to the status quo: First, end the government’s power to put its competitors out of business by force (which violates the freedom to contract of those who wish to provide and obtain such services); second, end the government’s power to confiscate its income by force (which violates the freedom from contract of those whose property is taken without their consent). Not much really.

What these libertarians hope and expect would result from these two changes is the evolution of a polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers. The ability of buyers to withhold their patronage and payments from sellers is the most powerful form of reciprocity. Having competing separate legal systems would provide far more effective checks and balances. And simply by switching justice and law enforcement providers, individuals would be able to assert the power of exit without leaving home. Of course, there is much more to be said about all this, which I explain in far greater detail in my book, The Structure of Liberty: Justice and the Rule of Law (Oxford, 1998).

(John Hasnas has suggested another way.)

But how might we ever get to a point where the United States government could be taken down to a size reflecting its true nature as a merely human organization like other human organizations, and its power balanced by other powers in society, to the end that our rights might be better secured? First and foremost, by speaking, or at least not denying, the truth. To that end, there’s a lot of speech we could do without:

Flags

The Pledge of Allegiance

The National Anthem

Oaths to support the Constitution

Parades for police officers or soldiers killed in the line of duty (since we don’t have parades for private security guards killed in the line of duty)

Voting

Addressing judges as “Your Honor”

Etc.