Martin Elson
Anarchists don’t reject law. They reject one law-giver with no competitors. The danger is never enforcement as such; it is an enforcer that can’t be left, voted out, recalled, or held to its own rules.
Order, law and government are three things
Roderick Long separates what most people run together. Order is people getting along, and most of it is informal. Law is the formal part: a way to settle conflicting claims and make the settlement stick. Government is one kind of law, the kind with a monopoly. Law can be voluntary, resting on boycott and reputation, or coercive. Coercive law can be monocentric, one agency over a territory, or polycentric, many agencies and none supreme. An anarchist rejects only the last step, the monopoly.
Most order never touches law at all. Robert Ellickson found ranchers in Shasta County, California, settling cattle damage by local custom; most of them didn’t know what the statutes said. Formal law without a state has a long record too. Medieval merchants built their own courts and codes across Europe, the Law Merchant, and enforced them with credit and reputation: break the rules and no one would trade with you. Anglo-Saxon law left domestic disputes to local moots that applied custom, with borh groups of ten or twelve people, bound first by kinship and later by agreement, pledging for each other’s good conduct.
So law isn’t what makes order. People behave as they will whether or not anything is written down. What holds a community together is the standards it keeps, written or unwritten, and the effort its members put into keeping them. And since there are many roads to order, a world without states wouldn’t look uniform. It would look like the variety we already see between nations, and between states within a nation, minus the cages. That variety is only freedom if people can leave one community’s standards for another’s.
Tom Bell adds a parallel. Money and law both grew up from below, as common standards people needed to deal with each other. Both were competitive until kings monopolized them. A generation of scholars now argues for free banking, and Bell argues for the legal equivalent: overlapping jurisdictions in open competition.
Why the monopoly makes things worse
The standard case for the state is the public-goods problem: people won’t pay for order if they can free-ride on others. Long turns it around. A monopoly that collects its revenue by force has public-choice problems at least as bad: it isn’t answerable to the people it serves, and its officials don’t pay for their mistakes. A market creates incentives to solve its own free-rider problems, because whoever solves one gets paid. A monopoly forbids the competition that would solve its problems. Nor is competition the only fix it shuts off. Exit, recall and plain refusal check an enforcer too, and so do the things the communal wing relies on below: reputation, mutual aid, and communities that hold their own members to account. A monopoly closes all of them at once. And its own remedies work like a prescription for an injury the patient keeps inflicting on himself: each new law or agency treats harm the last one caused, brings side effects of its own, and breeds dependency, while every dose does less than the one before. So the choice isn’t order versus chaos. It is which set of bad incentives can be fixed.
The communal wing says the same
Life Without Law, a zine from Strangers in a Tangled Wilderness, makes the case from the other wing. Its writers want no market in law; they want communities that settle harm by accountability to the people affected, not by codes imposed from outside. They see the freedom without responsibility that the state claims to prevent as the privilege of police and the very rich. They and Long disagree about markets and agree about the monopoly, which is what anarchism without adjectives expects.
Gary Chartier’s Anarchy and Legal Order (2013) gives the fullest modern case, and it stands on both sides of that divide: a market anarchist who calls his project leftist, anticapitalist and socialist. He pictures overlapping legal regimes, some local, some spread across networks, each resting on actual consent rather than the implied or hypothetical kind states claim. They would differ in their rules and leave room for many ways of living. They would rely on tort law, compensation for injuries to bodies and possessions, and drop the separate category of crime, which he calls essentially statist. And a regime that uses force against outlaws, he argues, still differs from a state in ways that matter, because the people it serves chose it and can leave.
The test, applied
The Thick page promised to put polycentric law to the test from Start Here: can the enforcer be left, voted out or recalled, and held to its own rules? It cuts both ways.
| Enforcer | Can you leave it? | Can you recall it? | Bound by its own rules? |
|---|---|---|---|
| The modern state | Only by emigrating | Partly, through elections | Judges its own case |
| The Law Merchant | Yes: trade elsewhere | Yes: courts lost business | Yes: reputation was the bond |
| Community accountability (Life Without Law) | Yes, in principle | Yes: no standing office | Depends on the group; small groups can be harsh |
| Arbitration clauses in employment and consumer contracts | No: signed as a condition of the job or purchase | No | Set by the company |
| Private security and mercenaries | Answers to whoever pays, not to whom it polices | No | Only to its client |
The last two rows matter most. Polycentric in form is not enough. A private court that one side writes into a contract the other side can’t refuse is the monopoly again, smaller. John Hasnas welcomes the growth of private dispute resolution (see The Myth of the Rule of Law); I welcome it only where both parties could walk away. Private security gets its full treatment in Anarchism and the State.
The strongest case against
Rand’s objection is on the Thick page: competing agencies with nothing above them settle disputes by force. Robert Nozick gave it a sharper form in Anarchy, State, and Utopia (1974). Protection agencies would merge or fight until one dominated each territory, and that dominant agency would become a minimal state by an invisible hand, without anyone’s rights being violated.
Tyler Cowen pressed harder still in 1992. Agencies that cooperate enough to send disputes to shared arbitration can also cooperate to fix prices and shut out rivals. The network that makes polycentric law peaceful is the same network that would let it turn into a cartel, which is to say a state.
I take Cowen most seriously, because he is right that nothing guarantees against collusion. But the argument shows that a stateless order could slide back into a state, not that the state is better. The state is collusion already finished, with exit closed. Overlapping jurisdictions, real exit, and people who refuse to grant any agency a monopoly are the only guard, and they are also the only guard against the state we have now. Nozick’s invisible hand assumes the dominant agency stays honest without competitors; the Anarchism and the State section presents evidence that it doesn’t.
Sources
- Roderick T. Long, “The Nature of Law” (Formulations, four parts, 1994–96). Order, law, government; voluntary, monocentric and polycentric law; public goods vs. public choice. original · copy here
- Tom W. Bell, “Polycentric Law” (Humane Studies Review 7, no. 1, Winter 1991/92). Money and law; Anglo-Saxon and merchant law. copy here
- Strangers in a Tangled Wilderness, Life Without Law: An Introduction to Anarchist Politics. Freedom with responsibility; no law, no state. original · copy here
- Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge University Press, 2013). Overlapping consensual legal regimes; tort instead of crime; a leftist, anticapitalist anarchism. His earlier article “Natural Law and Non-Aggression” (Acta Juridica Hungarica 51, 2010; on the site as “Natural Law and the Non-Aggression Principle”) lays the groundwork and is in the Propertarianism section. PDF
- Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Harvard University Press, 1991).
- Bruce L. Benson, The Enterprise of Law: Justice Without the State (Pacific Research Institute, 1990). The Law Merchant and customary law. summary
- Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974), Part I. The dominant protective association.
- Tyler Cowen, “Law as a Public Good: The Economics of Anarchy” (Economics and Philosophy 8, 1992). The collusion objection.
- Ayn Rand, “The Nature of Government” (1963). Full entry on the Thick page.