Justifying a stateless legal order: a critique of Rand and Epstein.

Author:Block, Walter E.
  1. Introduction

    Most people reflexively reject any appellation that contains the dreaded "A" word, "anarchism," as it brings up pictures of bomb-throwing. Free-market anarchism, or anarcho-capitalism, partakes of using the "A" word, but is the opposite of throwing bombs. Indeed, if there are any bomb-throwers around, it is the state--the archists--not the anarchists.

    What, then, is free-enterprise anarchism? It is predicated upon two principles. First, the nonaggression principle (NAP), which holds that it is illicit for anyone, anyone, (1) to initiate or threaten violence against anyone else. (2) The second side of the libertarian coin is property rights, based on homesteading, (3) and legitimate title transfer (Nozick 1974). A mixes his labor with a field, and grows corn on it. B domesticates a cow, and milks it. They each are the proper owners of these two products. Anyone who forcibly takes either away from them has violated the NAP. Where upon the two voluntarily trade. A now owns the milk even though he did not directly produce it, while B is now the owner of the corn that he did not directly produce. But each can trace their new property back to homesteading and to one of the legitimate title transfers, trade. (4) Libertarian anarchism is the system that brooks no exceptions to the NAP or the property rights generated on this basis. This paper discusses the following topics: in Section II, the evils of statism; III, world government; IV, secession; V, government formation; VI, democracy; VII, how anarchy would work; VIII, Rand on crime and objective law; IX, Rand on protectionism and government; X, Epstein on anarchism; XI, Epstein's defense of taxes as market mimicry. Section XII concludes.

  2. The Evils of Statism

    Why do anarcho-capitalists reject the state? It is because governments necessarily violate the NAP in two ways. The first is taxes. Every state forces people within its domain to pay taxes to it, whether they are willing to do so or not. Taxation is a clear and present violation of the NAP. It might be argued, in opposition to this contention, that as citizens of the country, people have agreed to pay taxes, and that these payments, therefore, are not coercive. Stuff and nonsense. Where is the evidence of any such agreement? I never signed any such contract. (5) Did you? Of course not. What of the argument that if people do not wish to pay taxes to the government, they are free to depart? (6) This, too, is a non sequitur. It assumes the very point at issue: namely, that the apparatus of the state has the right to compel non payers of taxes in the first place. But from whence does that right emanate? Certainly not from prior agreement, which is entirely lacking.

    The second way in which government violates the NAP is via monopoly. It demands the right to be the sole taxing authority within a given geographical area, and seizes for itself the role of arbiter of last resort in terms of court cases, police matters, and so on. If government is really a legitimate organization, why cannot two such entities exist in the same jurisdiction? Pizza-making is a licit activity. Yet, what would we think of a pizza parlor that forbade competition at the point of a gun? If statism is as valid as supplying this foodstuff, why cannot there be two, three, many states in any one area, as there are pizza restaurants?

  3. World Government

    An argument on behalf of the government is that without it, we would be at each other's throats. According to Hobbes (1943), life would be "nasty, brutish and short" without the intermediation of this institution as policeman. But, if we need a state to keep the peace between individuals, we must of course require an institution of this sort to ensure that groups of people do not kill each other. Nations themselves qualify in this regard. That is, they, also, are amalgamations of persons. So, we need a government to attain peace and justice between them, too.

    And what, pray, is such an organization called? Why, world government, of course. At the present time, China and Israel are in an anarchistic relationship with one another. That is precisely the situation between Canada and Spain, Mexico and Australia, and so on. If life would be "nasty, brutish and short" without a government to ensure it is not, then logic implies that a world government be set up, and forthwith. Of course, if this were done, and if that institution were even vaguely democratic, then, China and India between them would pretty much run things. Very few people, certainly not minimal government libertarians, would welcome such a state of affairs with equanimity. If not, then, they must, perforce, give up their dreams of local nation-states, as they both spring from the same fallacious considerations.

  4. Secession

    Yet another proof that government is necessarily in conflict with the NAP concerns secession. Here, we sharply distinguish leaving a geographical area under control of a nation, that is, emigration, from staying put and rejecting the authority of the local state. That is, Mr. A writes a letter to the president, or prime minister, or tax authority of his country along the following lines:

    Dear State:

    I no longer wish to subscribe to your "services." Indeed, I am now and hereby severing all relationships with you. I intend to live in peace with you, my new neighbor; I wish to attain an arm's-length distance from you in all regards. Thus, I shall no longer pay taxes to you, and shall no longer expect to be "served and protected" by you.

    Yours truly,

    Mr. A.

    What might be the reaction of any "public servant" to reading such a missive? It would be roughly the one exhibited by the U.S. bureaucrat upon receiving a declaration of war from the "attacking" Duchy in the movie The Mouse That Roared, starring Peter Sellers: to ignore it. Well, not quite. After he got over stomach cramps from laughing, he would presumably detach the local constabulary to arrest Mr. A. What crime did Mr. A commit? Did he violate the NAP? Of course not. He was merely severing unwanted relations with an organization he rightly regarded as a bully and a tyrant.

    But is not secession necessarily associated with support for slavery? Certainly not. Yes, the South, during the unpleasantness of 1861-1865, (7) did indeed keep slaves. But so did the North at that time. In any case, the first secession movement occurred in Massachusetts in 1825, when members of that colony wished to secede from the union on the ground that the latter tolerated this vicious institution. If it was legitimate for the thirteen colonies to secede from Britain in 1776, the same applied to some of the colonies, the Southern ones, who wished to sever political relations with others of them, the Northern ones. Slavery abounded in all of these cases; therefore, logically, it can have nothing to do with the very different issue of secession (Woods 2010).

    It is more than passing curious that some people opposed to secession nevertheless favor divorce. After all, secession is no more, and no less, than divorce writ large. If two spouses may separate, then why may not two groups of people avail themselves of the right to sever connections?

  5. Government Formation

    Let us consider the formation of a state. It must take place on the part of individuals who were living in a given geographical area before the existence of the government, which is supposedly a contractual relationship between them. Thus, these people lived antecedently to its creation, presumably in a state of nature. It would be logically impossible for the government to have been created before there were any people around to do so. People without the state is at least a logical possibility, no matter how unjustified it would be in the eyes of statists. The government with no people is a logical impossibility, akin to a square circle.

    What was the genesis of this evil institution? Presumably, a bunch of people, in our fairy tale world, got together and agreed to form a government in order to better protect their rights. It was like a club. And, when you join the golf and tennis club, you have to pay your dues. Taxes are just another name for the club dues we pay to the state club.

    Was this contract unanimous? Did all of the individuals accept participation? Of course not. In any real world scenario, there are always holdouts and those who do not wish to go along. On what basis were those who were reluctant to join, those who did not wish to do so, nevertheless forced to take part? Clearly, the process would have been incompatible with the NAP.

    Here is a scenario that might well have occurred in 1776 between a representative of the new country, the United States (we'll call him Mr. B), and a man living peacefully in the back woods of western Pennsylvania (Mr. C.).

    B: Hey, bro, we just started up this new organization, the United States of America, and you are now part of it.

    C: That is wonderful. I congratulate you on the establishment of your new organization. We'll be great neighbors; we'll trade with each other. Here, let me give you this gift to celebrate the creation of your voluntary club

    B: No, no, you don't understand. You, too, are now a member of this group.

    C: Moi? Oh, thank you, thank you, for asking me to join your club. But, I'm not much of a joiner. In fact, I have never joined anything. Following Groucho Marx, I wouldn't join any club that would have me. (8)

    B: Stop being difficult. You're now in the U.S. territory. You'll pay taxes and obey our rules and regulations whether you like it or not. We've got more guns than you; many, many more.

    C: Whoa. I was here first. I homesteaded this here land before you were born, sonny. By what right do you compel me to join your group?

    B: Might makes right.

    C: Well, then, at least have the decency to stop with the nonsense that yours is a voluntary organization.

    In this regard Schumpeter (1942, p. 198) opined: "The theory which construes taxes on...

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