The A Word
Must the State Supply and Enforce Law?
JULY 01, 2001 by DONALD BOUDREAUX
I confess to having deep sympathies for anarchism. I hold open the possibility and the hope that a prosperous and peaceful society can flourish without the state.
Unfortunately, the word “anarchy” has an offensive connotation. Anarchy is commonly understood to mean “lawlessness.” And lawlessness truly is offensive. A lawless society has no rules to govern behavior. It is a society in which the physically mighty and the deviously clever prey upon others. Victims of these predators suffer grievously. With security of persons and their property being precarious, a lawless society is inevitably destitute. Commerce, industry, saving, and investment don’t arise. Nor does civilization. Nearly all human effort, along with what few resources exist, is spent on plunder and on trying to protect oneself from plunder. Life is truly, to use Thomas Hobbes’s line, “solitary, poor, nasty, brutish, and short.”
Lawlessness is a curse worthy of our deepest fears.
This justified fear of lawlessness underlies most people’s assumption that the state is necessary. Most people—even many libertarians—assume that law must be supplied and enforced ultimately by the state.
I dissent. I disagree with those who say “Well, of course, the state at least must supply law and order, and protect us from violence and theft.”
What I disagree with is the “of course.” I object to the unreflective assumption that an agency with sovereign authority to use coercion—the state—is necessary. The state might indeed be necessary, but the burden of proving it ought to be on those who make the claim rather than on those who question it.
No human agency has as much blood on its hands as the state. Throughout history, states have routinely slaughtered innocent people—people outside of and within their own jurisdictions. Too many states have subjugated the masses and prevented ordinary people from trading freely and living according to their own individual lights rather than according to how the rulers wish them to live.
And modern states have raised these frightful arts to new heights. Obviously, communist and national-socialist states are most savage. But even the United States government has spilled innocent blood and tyrannized peaceful people. In the past it enforced slavery, conscripted young men to fight and die in wars, and herded native Americans onto reservations and treated them cruelly. Today it conducts armed raids in search of narcotics; prevents people from voluntarily using drugs that their physicians might otherwise prescribe as cures; seizes property in asset-forfeiture actions; and puts every American at greater risk of terrorist attack by intervening in the politics of other nations. Government in the United States today is even trying to superintend our thoughts by enacting hate-crime statutes.
No institution with the state’s track record deserves a presumption of legitimacy.
Again, it’s possible that even the best feasible stateless society will be worse than a society with a well-structured government constitutionally limited to protecting its citizens from violence and theft. But let the case be made. Do not accept the necessity of the state as beyond question.
The more we learn about history and economics, the more we see how remarkably creative and effective are voluntary actions within a regime of private property rights.
Everywhere in the Western world, from even before the collapse of Rome until the late eighteenth century, consensus opinion held that religious belief is so important that it must be regulated by the state. Chaos was thought inevitable if everyone was free to choose which, if any, gods to worship. We now know that peace and order do not require state oversight of religious belief.
Until the late eighteenth century, consensus opinion held that international trade is too important not to be regulated by the state. People trading freely will, it was widely believed, impoverish both state and society. But the analyses offered by Adam Smith, David Ricardo, Frédéric Bastiat, and Co., along with real-world experience, proved quite the opposite.
Until very recently, even free-market economists thought that only the state can issue stable money. But historical research along with sound theoretical work has now shown convincingly that sound money has been, and can be, issued by purely private firms. Indeed, privately issued money is more likely to hold its value than is money issued by government.
The history is similar for freedom of speech and freedom of the press. So much of what consensus opinion once held to be unquestionably necessary for the state to regulate is now proven to be best left free.
Isn’t it possible that the same is true for law?
We already know that much law is the product of voluntary actions rather than of state coercion. Western commercial law originated not in the head of some monarch or from the deliberations of a state assembly. Rather, this law grew from the daily practices of private merchants. The “Law Merchant” (which is the foundation of the Uniform Commercial Code in use today in the United States) originated in medieval times when commerce on the Mediterranean began expanding. Merchants in Genoa or Venice shipped goods to merchants in north Africa and other distant places. And vice-versa. No sovereign power governed these merchants collectively. If a Tunisian merchant refused to pay his Venetian supplier for goods shipped from Venice, no royal sheriff or international Pooh-Bah could be called in to forcibly extract payment from the recalcitrant Tunisian.
Nevertheless, trade flourished. The reason is that the merchants themselves—business people sharing no sovereign master—developed law courts and procedures and, hence, a body of nuanced law that determined merchants’ rights and obligations.
If a merchant disregarded the ruling of a merchant court, or otherwise violated merchant law, he wasn’t imprisoned or threatened with violence. Instead, he simply lost the most valuable asset any business person can possess: a reputation for integrity. A lawbreaking merchant could no longer find other merchants to deal with. He was out of business. One result of this system of voluntary law was a remarkable degree of law-abiding behavior.
Does the success of private commercial law prove that other types of law—most notably, criminal law—can be supplied privately? No. But the Law Merchant combines with a long history of mistaken presumptions about the necessity of state action to suggest that we ought not presume that the state is necessary to supply law and protection from aggression. Perhaps, just maybe, a peaceful and productive society is possible with no state at all.
Whether a stateless society is called “anarchic” or something else is unimportant. What’s important is that we not dismiss the possibility before seriously reflecting on it.
Find a French translation of this article here.
Find a Portuguese translation of this article here.