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| Portrait of Thomas Jefferson from his own time |
I am part of an ideological movement that advocates free markets and deregulation. Much of the public’s distaste for free-enterprise ideology has to do with the public’s own faulty premises and prejudices. And, as Ayn Rand has noted, much of the hostility is due to misconceptions about morality that have been around for millennia. However, there is a large aspect of the supposed “liberty movement” that most people are right to find off-putting. What the public is right to distrust is the clique of people who preach what is called anarcho-capitalism, market anarchy, anarcho-pluralism, or agorism.
As the anarcho-“capitalist” ideology is most popularly associated with the late economist Murray N. Rothbard, it is also a tenet of what can be called Rothbardism. Sadly, anarcho-capitalism is not the only aspect of the Rothbardian outlook that is woefully misguided. Rothbardians also demand that there cease to be enforcement of intellectual property rights, such as patents and copyrights, and, through various misrepresentations, they insist that defamation not be legally actionable. In their disingenuous treatment of what is entailed by slander and libel suits, they defame defamation law itself. But here instead we will focus on the Rothbardians’ favorite bit of ideology. Although the public is too dismissive of many radical pro-market reforms that are proposed, the public is right in judging that the prevalence of anarcho-“capitalist” rhetoric greatly damages the credibility of those who trumpet laissez-faire economics against government control.
The idea behind anarcho-“capitalism” is as follows. The entire institution of “government” should be abolished. This will not mean, however, that everyone will be committing violence against everyone else. No, say the Rothbardians; you can still be protected from violence. This is because there will be a system of private, for-profit, competing “defense” service firms. A firm will be a chain like Walmart or a franchise like McDonald’s. If you are in trouble, you can call your protection-service provider to come to the rescue.
And if you are unhappy with the service of your current provider, you have other options. This is an option not available to you under the current system of government. You can call your current service provider and cancel your subscription. Then you can you can contact a competing service provider and subscribe to this one instead. Thus, the different firms will compete on price and quality of service.
And there is more to that. When you subscribe to a particular protection-service company, you contractually agree to the rules that it sets for you. These are the anarcho-“capitalist” society’s equivalent to statutes and ordinances. If you subscribe to Protection Service A, you contractually agree not to murder any other subscriber to Protection Service A.
The anarcho-“capitalist” economist David D. Friedman, the son of the late Milton Friedman, has more to add. He says that because different firms offer different rules — different laws — this is another area where they compete. Some firms might violently punish subscribers for adultery, for example, whereas others might not. There is intra-industry “competition” among legal systems themselves. In his book The Machinery of Freedom, David Friedman touts this as yet another selling point in his pitch for anarcho-“capitalism.” In his words, “part of [the defense company’s] product is the legal system, or systems, of the courts it patronizes and under which its customers will be judged.” Consequently, “laws” and legal systems themselves are “on the market.”
The flaws in this anarchy become more visible when we gain a clearer understanding of the institution of government, and of what is and is not proper to it. As explained by nineteenth-century German sociologist Max Weber, the institution of “government” is defined by its relationship to violence. A society’s government is the party that most members of that society recognize as being the final arbiter on when and how violence can be used. That society’s government is to protect that society’s members from violence by members from other societies.
But that society’s government is also to protect that society’s members from each other. Because of this, private parties are not to use any violence unless the government — the State — has authorized them to do so. In the nineteenth century, there was the horrifying example of various state governments in the USA allowing slaveholders to enact violence on their slaves. But absent of governmental permission, private parties are not to use violence. Any private party that exerts violence, contrary to governmental approval, is in breach of law and is therefore itself subject to violent punishment by its government. As articulated by Weber, that is the defining trait of the institution of government. It is that, in terms of what a society deems acceptable, its government retains a monopoly on the socially approved threat of — and use of — physical force within the geographic region in which that society resides.
Some Rothbardians say that protection-service firms could perform some of the same functions of governments but there will always be a crucial difference that distinguishes them from governments. The difference is the removal of that monopoly on force. As the “monopolism” on violence is the defining trait of government, the removal of this monopolism should preclude any protection-service firm from becoming a government itself . The Rothbardians’ own type of social system, they cheer, amounts to “anarchy” but not chaos or civil war.
Ayn Rand has raised the issue of what happens when a subscriber to one “protection”-service firm comes into conflict with the subscriber to yet another firm. Suppose I am with Protection Service A and you are with Protection Service B. I burglarize your home. When you send police from Protection Service B to detain me, isn’t Protection Service A supposed to send its own police to protect me? It looks like a recipe for armed conflict.
David Friedman, as with other apologists for anarcho-“capitalism” before him, offers a glib reply. The anarchist answer is that disputes between subscribers of separate “protection”-service firms can settle their disputes more peacefully than that. When you and I each subscribe to our respective service providers, it turns out that the separate service-providing firms already made an agreement beforehand. The agreement is that, in the event of such a dispute, they can go to a private, for-profit arbitrator — a privately owned Dispute Resolution Organization (DRO). Hence David D. Friedman says triumphantly, every interaction between separate Protection Services shall be “less violent than Miss Rand supposed.”
After all, another Rothbardian can say, there is a precedent for that with competing insurance companies. Maybe you buy auto insurance from Allstate, whereas I do from Geico. Suppose we get into a collision on the road. On a daily basis, Allstate and Geico are able to settle disputes with one another. “Why, then,” ask the Rothbardians rhetorically, “can’t this also apply to defense-service firms?”
As one prominent Rothbardian economics professor in Hawaii stressed to me, any private party actually has a moral right to “compete” against a constitutional liberal republican Night Watchman State in terms of using retaliatory force against the initiators of violence. Such rightful “competition” can even include vigilantes if they behave ethically and responsibly enough. As one female anarcho-“capitalist” told me, to distrust vigilantes in a constitutional liberal republic would be to write off Batman and Wonder Woman as villains.
And these Rothbardians do not merely propose this anarcho-“capitalist” system as some alternative to governments as they currently exist. They do not hail anarcho-“capitalism” as merely preferable to the kleptocracy of mainland China or the mixed economies and regulatory-entitlement states of rich countries like the United States, Canada, France, and Sweden. No, the Rothbardians go much farther. They push anarcho-“capitalism” as the one best arrangement for any human habitat — period.
It is better, they propound, than having the constitutional liberal republican Night Watchman State that has been held as ideal by Ayn Rand in the twentieth century and Auberon Herbert in the nineteenth. More than that, the Rothbardians would have it that the constitutional liberal republican Night Watchman State be rejected altogether. They decry it as a disappointment and a lie because, as with any other kind of government, it retains a monopoly on the use of socially authorized violence.
What a Truly Free Society Looks Like, and Why Anarcho-“Capitalists” Reject It
But a constitutional liberal republican Night Watchman State actually has very good reasons for this “monopolization.” And, contrary to Rothbardians like that one I have known in Hawaii, this “monopolization” on the part of a constitutional liberal republican Night Watchman State is actually in the service of freedom. To understand how this is so, we can review the qualities that comprise a constitutional liberal republican Night Watchman State. Of special interest is a quality of which anarcho-“capitalists” seldom speak, as it exposes the weakness of all their entreaties. That quality is Due Process.
But a constitutional liberal republican Night Watchman State actually has very good reasons for this “monopolization.” And, contrary to Rothbardians like that one I have known in Hawaii, this “monopolization” on the part of a constitutional liberal republican Night Watchman State is actually in the service of freedom. To understand how this is so, we can review the qualities that comprise a constitutional liberal republican Night Watchman State. Of special interest is a quality of which anarcho-“capitalists” seldom speak, as it exposes the weakness of all their entreaties. That quality is Due Process.
A constitutional liberal republican Night Watchman State has citizens vote for representatives who make laws and for executives who carry them out. But far from being a pure democracy, in which a majority could vote to expropriate and persecute any minority, this State recognizes that the freedom of the individual must be protected against the voting majority’s arbitrary will. Hence, this State has a charter that spells out the functions of the State and of areas in life where the State, even acting on the voting majority’s mandate, may not encroach. These include the freedom of thought and expression, for example. The (a) charter and the (b) practice of voting for representatives are, respectively, the constitutional and republican aspects of the constitutional liberal republican Night Watchman State.
As great as the USA is, it is not as consistent as it can and should be in securing the liberty that the Declaration of Independence describes so movingly. The only sort of action that can obstruct a citizen’s freedom to live and act on her judgment is an initiation of the use of physical force against her. And any and every governmental action is ultimately enforced by the threat of such force against the noncompliant. Therefore, being consistent in remaining free requires that the State act only against the initiation of the use of such physical force.
That means that the State protects the individual from bodily harm by others. That is the reason for laws against murder, physical battery, poisoning, and rape. And to live and act on one’s judgment, a citizen must also be able to produce wealth to sustain herself. That wealth is her private property. For other parties to act forcibly to deprive her of the wealth she produced is to deprive her of her ability to maintain her life. On that account, the State is also just to act against theft, property damage, and intellectual property infringement.
There are also indirect initiations of the use of physical force. As science historian John McCaskey elaborates, these uses of force involve the wrongdoer manipulating the victim or others around her in order to harm her. They involve contract breach and fraud. Here, the victim agrees to perform a physical action only if a particular condition is met. She performs the physical action but the condition is not met. Here, the physical force is the victim performing the physical action while being misled into doing so, on the false pretense that the terms under which she performed were being met.
Although Dr. McCaskey does not mention it, a similar indirect use of force is defamation. Here, the wrongdoer manipulates persons with whom the victim interacts or with whom she otherwise could interact. When plausible lies are told about the victim’s character, those who believe the lies are manipulated into becoming a danger to the victim, a danger that otherwise would not be present. As the danger of defamation is not well-understood even by many admirers of Ayn Rand’s, further elaboration might be required in another essay for another day.
In any case, a legitimate government uses its inherently violent powers only to repel the parties that instigated to use of physical force. Otherwise, the government leaves everyone alone. In the words of economics educator Leonard E. Read, it respects to right of anyone to do “anything that’s peaceful.” Originally as an insult, socialist and Karl Marx contemporary Ferdinand Lassalle compared this sort of State to a Night Watchman — hence the night watchman of the constitutional liberal republican Night Watchman State.
A constitutional liberal republican Night Watchman State is the polity of individualism. This is because, as far as the constitutional liberal republican Night Watchman State is established, every individual has the utmost liberty to act on her own judgment and flourish from doing so. As I have written elsewhere, peaceful actions are taken by individuals, not collectives. For that reason, the choices that people make in peace are the ones that remain personal and private; they are not the rightful purview of any government.
Conversely, as we shall see in this essay, violent actions are altogether different. Two facts about violence, seemingly paradoxical to one another, expose the weakness of anarcho-“capitalism.” (1) The full details of a violent act, at first, can be hidden from most members of a community. That condition initially makes it appear that an act of violence can remain personal and private. Yet (2) those same acts of violence impose ramifications upon everyone in that community. Fact 2 is the reason why no use of force can be personal or private in the end. And both 1 and 2 give rise to the need for Due Process, a Due Process that is as ubiquitous as can be. The imperativeness of Due Process is something that anarcho-“capitalists” have not addressed adequately. It is where their case falls apart.
Indeed, when someone initiates the use of physical force — committing murder or theft — the wrongdoer normally conceals the action, keeping it hidden from most other members of the society. As a consequence, when someone is accused of initiating the use of physical force, there is often the chance that the accusation is false. There is therefore a risk in an anarcho-“capitalist” Defense Agency or self-described Night Watchman State inflicting so-called “retaliatory” force against everyone accused of having initiated the use of force. Were that the situation, this alleged defender of freedom would actually be the party initiating the force.
As noted by Harry Binswanger, there has to be a safeguard to reduce the risk that persons will be violently punished for actions they were falsely accused of performing. That is the basis for a legitimate government stipulating that there be an objective, fact-finding methodology for ascertaining the accused person’s guilt or innocence. That methodology is the practice of Due Process for the accused. Due Process shields wrongfully-accused persons from physical force being fully initiated against them. Without Due Process, then, no social system can have true liberty — liberty being the liberal of the constitutional liberal republican Night Watchman State. It is the final piece to our puzzle. With all these components, we are able to uphold the principles of liberty enshrined in the Declaration of Independence and apply them to their logical conclusion.
And the absolute need for this Due Process is something that is glossed over in every pitch for anarcho-“capitalism.” And that is for a very important reason.
There are many private parties that “compete” against the government in terms of delivering what they deem to be their own brand of violent retaliation against those whom they say were the ones who threatened them first. These private parties always try to circumvent Due Process, and they are known as vigilantes.
And this is where Rothbardians, such as the one I have known in Hawaii, begin their objection. Yes, in a free society, no party acts in the right by initiating the use of physical force. Both the Rothbardians and the supporters of the constitutional liberal republican Night Watchman State are in agreement on that — at least on the surface. And, superficially, both groups agree on something else. It is that a party does act in the right by repelling the force of those who initiated it. By definition, a party that is using retaliatory force is not the party that initiated it.
Rothbardians then pronounce that there is an internal contradiction in a self-described pro-freedom government clamping down on private parties who say they are, on a very personal level, only using retaliatory force against other people who started the fight. That is, Rothbardians say that hypocrisy is inherent to a government that promises never to initiate the use of force even as this same government tries to stomp out vigilantes. True, a constitutional liberal republican Night Watchman State maintains its monopoly on the use of force. This translates to the constitutional liberal republican Night Watchman State being hostile to vigilantes.
Even a government that initially might seem “good” and “libertarian” to Rothbardians, then, will be monopolistic as it hunts down vigilantes. And, for them, this proves that the very institution of government is, by its very essence, evil. For them, that renders appeals for a constitutional liberal republican Night Watchman State to be a farce. They castigate it as a false Messiah. They believe that champions of this sort of government are just pantomiming a love for freedom. Accordingly, Rothbardians sneer at “pro-freedom government” as a contradiction in terms, as they do with “libertarian government.” They might be right on the latter term but they are dead wrong on the former.
This disapproval for a good government’s clampdown on vigilantes reflects in Rothbardians a profound misunderstanding of vigilantes, liberty, violence, and the institution of government. It shows how they ignore real-world examples of what happens when private parties, claiming only to using violence in retaliation, really do challenge a constitutional republic’s monopoly on force. The case studies from reality are not pretty. The truth is that the constitutional liberal republican Night Watchman State defends everyone’s freedom by exerting retaliatory force against vigilantes. In so doing, it upholds Due Process.
There are some anarcho-“capitalists” who counter that they really do care about Due Process. They continue that their precious Private Defense Agencies would take measures to institute Due Process and restrain the fury of vigilantes. But they fail as well. As my essay will explain, the more actions that these Private Defense Agencies take to establish and enforce Due Process, the more they assume the role of a hegemonic “monopolistic” government. And that defeats the entire purpose of anarcho-“capitalism” being chosen over a constitutional liberal republican Night Watchman State.
The reality is this. Any use of violence, be it initiated or made in self-defense against the initiator, is necessarily everyone’s business. It is necessarily your business,. And, to the degree that a constitutional liberal republican Night Watchman State has jurisdiction, it is necessarily the business of that government. The reason is that no use of violence, be it initiated or made in self-defense, can properly be privatized.
How Libertarians Propose Retaliatory Violence Can Be Privatized: Replace All Criminal Law With Civil Law
I did not always understand all this. For many years I was beholden to an argument that Dr. W. Alan Burris leveled in his book A Liberty Primer. In this work, Burris argues the following. Imagine that Ralph steals $100 from Jake. Suppose Jake does not merely file a civil suit against Ralph, but presses criminal charges as well. In that instance, continues Burris, the lawyer who prosecutes Ralph will not be an agent working exclusively on Jake’s behalf. Instead the prosecutor will be representing the entire municipal government, the entire community, against Ralph. The implication is that Ralph’s victims are not limited to Jake; Ralph victimized the entire community. To most Americans, that is common sense. But Rothbardians balk at this interpretation..
Dr. Burris, as with many Rothbardians, denies that if Ralph acted violently on Jake, then Ralph has actually proven himself a danger to all of the community. Dr. Burris “corrects” the record by telling us that, in reality, Jake remains Ralph’s sole victim. Therefore, concludes Dr. Burris, applying individualist principles requires that criminal law be abolished completely. It must be supplanted entirely by civil law. Dr. Burris continues that the reality is that Jake was the sole victim and therefore, if Ralph initiated the use of force against Jake, it is incumbent upon Jake to file a lawsuit against Ralph to make himself whole again. The same principle would apply if Ralph raped Jake. Again, Jake should seek justice by filing a civil suit against Ralph. That would be better, Rothbardians insist, than proclaiming that when Ralph raped Jake, Ralph somehow victimized everyone in the community as opposed to Jake himself.
Libertarians who advocate that civil law replace criminal law completely even have thought of what should be done with respect to homicide. If there comes a day when Ralph kills Jake, Jake cannot sue Ralph from beyond the grave, right? Thus, suggest civil-law libertarians, Jake can specify in his will that should he be murdered, the executor to his estate will gain the power to file suit against the party the executor judges to be culpable for the death. Jake can specify in his will that if he is slain, his wife will gain the power to sue on his behalf. Should Jake’s widow be unable to carry out this task, then the responsibility will fall upon their eldest child. There is an entire line of succession.
Bamboozled for years by that Rothbardian economics professor in Hawaii, I actually agreed with this and came up with my own “What if?” scenario: What if Jake is a complete recluse and has no friends or family left? If he expires, what recourse would he have? Here is the “solution” I thought up: it is very unlikely that Jake would be the only recluse in his community; there would probably be others. Jake can hire a law firm specializing in estate law. They sign a contract stipulating that if Jake is murdered, the law firm will sue the culprit on his behalf. There will be many such law firms competing against one another.
Libertarians who advocate that civil law replace criminal law completely even have thought of what should be done with respect to homicide. If there comes a day when Ralph kills Jake, Jake cannot sue Ralph from beyond the grave, right? Thus, suggest civil-law libertarians, Jake can specify in his will that should he be murdered, the executor to his estate will gain the power to file suit against the party the executor judges to be culpable for the death. Jake can specify in his will that if he is slain, his wife will gain the power to sue on his behalf. Should Jake’s widow be unable to carry out this task, then the responsibility will fall upon their eldest child. There is an entire line of succession.
Bamboozled for years by that Rothbardian economics professor in Hawaii, I actually agreed with this and came up with my own “What if?” scenario: What if Jake is a complete recluse and has no friends or family left? If he expires, what recourse would he have? Here is the “solution” I thought up: it is very unlikely that Jake would be the only recluse in his community; there would probably be others. Jake can hire a law firm specializing in estate law. They sign a contract stipulating that if Jake is murdered, the law firm will sue the culprit on his behalf. There will be many such law firms competing against one another.
Insurance companies can also be involved. Jake can sign a contract stipulating that if he is murdered and the culprit is not sued successfully, the insurance company will have to pay insurance money to an organization of Jake’s choice. Because the insurance company does not want to pay out so much money, it would probably be cheaper for the company to hire a lawyer to sue whomever killed Jake. Should the insurance company win the lawsuit, it will not have to provide the large stash of insurance money to the organization that Jake selected. If Jake is murdered, of course, he will not be around to observe whether the law firm or insurance company followed through with the contract.
How, then, would the law firm or insurance company be incentivized to carry out the arrangement? The “answer,” I rationalized, would be intra-industry economic competition. There would be other recluses in the community observing what the law firm or insurance company did on Jake’s behalf. If the law firm or insurance company failed to carry out Jake’s wishes, similar recluses would take note of this failure. They would then refuse to patronize that law firm or insurance company. They would take their business to a competitor. That, I rationalized to myself, demonstrated that civil law could indeed replace all criminal law. I was incorrect, and the correction came from an unlikely source. That source was a man somewhat unfairly maligned as a symbol of tyrannical government and violence.
Hank Rearden Refutes the Civil-Law Libertarians
The correction came from the ancient Greek lawgiver Draco. He was allegedly too harsh in punishing crime, and therefore a government acting too harshly is said to be draconian. However, Draco set a precedent that is crucial to having a truly free, constitutional liberal republican Night Watchman State. It turns out that prior to Draco’s time, the ancient Greeks largely agreed with W. Alan Burris that murder was a private matter. The ancient Greeks believed that if, say, Ralphius murdered your brother Jacius, it was not as if Ralphius had threatened the safety of the entire community. No, they said; Ralphius’s lone victim was your brother Jacius. Therefore, if you wanted justice for Jacius, it was left to you and your family to seek out some personal vengeance. But Draco saw through all of that. Draco said that if Ralphius murdered Jacius, Ralphius necessarily victimized everyone in the community. Draco thus concluded that the State, representing the entire community, was right to avenge the entire community against Ralphius.
How, then, would the law firm or insurance company be incentivized to carry out the arrangement? The “answer,” I rationalized, would be intra-industry economic competition. There would be other recluses in the community observing what the law firm or insurance company did on Jake’s behalf. If the law firm or insurance company failed to carry out Jake’s wishes, similar recluses would take note of this failure. They would then refuse to patronize that law firm or insurance company. They would take their business to a competitor. That, I rationalized to myself, demonstrated that civil law could indeed replace all criminal law. I was incorrect, and the correction came from an unlikely source. That source was a man somewhat unfairly maligned as a symbol of tyrannical government and violence.
Hank Rearden Refutes the Civil-Law Libertarians
The correction came from the ancient Greek lawgiver Draco. He was allegedly too harsh in punishing crime, and therefore a government acting too harshly is said to be draconian. However, Draco set a precedent that is crucial to having a truly free, constitutional liberal republican Night Watchman State. It turns out that prior to Draco’s time, the ancient Greeks largely agreed with W. Alan Burris that murder was a private matter. The ancient Greeks believed that if, say, Ralphius murdered your brother Jacius, it was not as if Ralphius had threatened the safety of the entire community. No, they said; Ralphius’s lone victim was your brother Jacius. Therefore, if you wanted justice for Jacius, it was left to you and your family to seek out some personal vengeance. But Draco saw through all of that. Draco said that if Ralphius murdered Jacius, Ralphius necessarily victimized everyone in the community. Draco thus concluded that the State, representing the entire community, was right to avenge the entire community against Ralphius.
This is true. As Leonard Pekoff considered in a podcast from March 23, 2009, a use of force against one person places an implicit threat upon others as well. If Ralph steals from Jake, then everyone else in the community has probable cause to fear that Ralph may steal from them as well. If Ralph rapes Jake, everyone else in the community has probable cause to fear that Ralph may rape them as well. And if Ralph murders Jake, everyone else in the community has probable cause to fear that Ralph may murder them as well. Even if Ralph publicly issues a serious threat of violence against Jake and has yet to carry it out, the rest of the public has probable cause for fearing that Ralph may go through with threatening them. Therefore, any initiation of the use of force does, perforce, victimize everyone in the community.
Even in a constitutional liberal republican Night Watchman State, there might be some initiations of the use of force that might only be settled through civil suits. As noted above, a contract breach is an indirect use of physical force. Yet, presently in the United States, if someone breaches contract with you, you have no recourse but a civil suit. In a purely rational constitutional liberal republican Night Watchman State, rational legal theorists may quibble over what sorts of infractions should merely be subject to civil suits and which should also be criminally prosecuted.
Nonetheless, the principle remains: there are some initiations of the use of force that are so severe that, should Ralph commit them against Jake, Ralph demonstrates himself to be a threat against everyone else in the community, not merely Jake. On that understanding, when the constitutional liberal republican Night Watchman State claims to represent the entire community in criminally prosecuting Ralph for what Ralph did to Jake, the constitutional liberal republican Night Watchman State is not wrong. It is not collectivistically usurping the authority to represent individual community members against their consent.
Hank Rearden got it right in his courtroom speech: “...when you violate the rights of one man, you have violated the rights of all...” Martin Luther King, Jr., also had the right idea when he said, “Injustice anywhere is a threat to justice everywhere.”
The initiation of the use of violence — by anyone against anyone — indeed demonstrates itself to be a threat to everyone in the community and not merely the most direct victim of that violence. If Ralph beats up Jake, there is sufficient evidence for you to worry that you could be the next victim of a beating from Ralph. And even if you, personally, believe that Ralph would never do this to you or your children, your next-door neighbor is reasonable in worrying that she might become his next punching bag. Violence cannot be privatized — any act of violence inexorably imposes repercussions for people other than the violence’s most direct victim.
If Ralph beats up Jake, the threat that Ralph poses to the rest of the community is what economists should identify as an “externality.” What this means is that Ralph brutalizing Jake invariably imposes a cost on people in the community other than Jake. This is an externality that cannot be “internalized” by merely allowing Jake to sue Ralph. The ramifications of every act of violence are unavoidably “collectivized” or “socialized.” Ralph imposed a cost on everyone in the community. The closest we can come to transferring that cost back to Ralph — to “internalizing” the cost that this externality imposed — is for the State to enact justice as Draco conceived. It is to have a constitutional liberal republican institution, the Night Watchman State, act as an agent of the community in general in responding to Ralph. This principle also has implications for self-defense and for ascertaining who is or is not deserving of what is believed to be “retaliatory force.”
If Ralph bruises his wife, he might rough up other people as well. Therefore, if you learn of this abuse, it is necessarily your business and the business of everyone else in the community. As long as you are reasonably sure that your action will not result in an immediate threat to her, you are right to take action even in defiance of the wife’s protests. Contrary to her assertions, she is not the exclusive victim. The same applies if you learn a young woman was raped by a relative. Even if she sternly pronounces she is the sole victim and therefore it is not your place to intervene, that is not accurate. Unless your taking action might result in her abuser immediately inflicting reprisals on her, you are right to intervene. It is your business and everyone else’s.
The only sorts of instances when people truly can consent to being acted violently upon are sporting events and rough sexual acts. Two men and their agents can all mutually sign contracts affirming that the two men consent to getting into a boxing ring and bashing one another for the audience’s amusement. Likewise, two or more people might consent to rough S-and-M. Note that, due to the riskiness of such actions, it is legitimate for there to be some government oversight when people allegedly explicitly consent to the risk of becoming objects of physical harm. It is legitimate for the government to investigate the contractual capacity of a man who says he consents to entering a boxing match. Likewise, it is incumbent upon participants in BDSM to agree upon safe words ahead of time. It is their responsibility to take precautions to ensure that no one is physically harmed beyond what he or she reasonably expected.
As if it somehow vindicates their position, anarcho-“capitalists” point out that there is some historical precedent in a society largely replacing criminal law with civil law. In The Machinery of Freedom, David D. Friedman happily reports that this happened with Iceland in the Middle Ages. When members of Household 1 murdered a member of Household 2, the surviving members of Household 2 took 1 to a civil court or arbitrator. A fact that these libertarians place much less emphasis on is that the rulings in these cases seldom put an end to these feuds where each household inflicted reprisals on the other. Amid this constant bloodshed, one hardly had the freedom to go about her own enterprises. Nor, in a modern context, would such disputes be settled by the Rothbardians’ favorite cure-all: the private, for-profit arbitration firm.
Is a Constitutional Liberal Republican Night-Watchman-State Initiating the Use of Force Against Private Vigilantes?
We say that it is evil to initiate the use of force. And that has a corollary. It is that there is moral justification for retaliatory force against the party that initiated the use of force. All of that is correct, but this principle is widely misunderstood by too many libertarians. It is misunderstood particularly by those who proclaim that it would be evil for a “monopolistic” constitutional liberal republican Night Watchman State to “monopolize” the issuance of such force.
Imagine that a gang called the Lombards mugs me and give me black-and-blues. Subsequent to some healing, I round up a group of friends and, without telling our constitutional liberal republican Night Watchman State, my friends and I seek out the Lombards to return the favor. That would be justice, correct? It would simply be issuing retaliatory force against the Lombards, correct? Therefore, say many libertarians such as Murray N. Rothbard, we should consider how wrong it would be when, as my friends and I seek out the Lombards for vengeance, the constitutional liberal republican Night Watchman State sends out police to apprehend my friends and me. The constitutional liberal republican Night Watchman State would arrest us on the grounds that we are petty vigilantes.
This is wrong, the Rothbardians protest. My friends and I were not initiating the use of force. No! We insist that we merely intended to issue retaliatory force. Therefore, goes the Rothbardian conclusion, when the constitutional liberal republican Night Watchman State holds my friends and me in captivity, it is the State initiating the use of force against my friends and me. And, to boot, the State did this for the purpose of maintaining its monopoly on violence!
That is a point that has been made to me, in all seriousness, by the aforementioned Rothbardian economics professor in Hawaii. As far as Rothbardians are concerned, no reckless vigilante can be worse than the monopolism of any government. Heck, they believe, a vigilante cannot even do more harm than the monopolism of a constitutional liberal republican Night Watchman State.
Here is what the Rothbardian argument overlooks. It is that, the long term, there can be no morally justified exercises of retaliatory force unless the widespread adherence to Due Process takes priority. Moreover, adherence to Due Process is inherently “monopolistic.” This essay of mine will explain what I mean by that.
In most instances where a private citizen initiates the use of force against someone, this is done in secret. If Ralph murders Jake, he will probably not do this out in the open. He will do this someplace hidden. And Ralph will dispose of the body in such a way that it will not be obvious that he was the one who committed the misdeed. The same goes for rapes. If Ralph rapes Jake, this will probably be out of view of most people. The same applies to most forms of theft committed by private citizens. Therefore, when a private citizen is accused of initiating the use of force against yet another citizen, it is seldom obvious that the accusation is true. And that is where Rothbardians hit a snag. This consideration bedevils all vigilante gangs that, in commissions of violence, claim to be issuing what is merely retaliatory force against the party that initiated the use of force.
Suppose that a man named Cletus catches his daughter, Emma, having sex with a low-status man, Alfonzo, who is of a racial minority. Cletus is horrified. Emma immediately tells Cletus that she was not consenting. She insists to her father that Alfonzo was raping her. Alfonzo professes his innocence, shouting to Cletus that Emma gave affirmative consent. But Cletus instantly believes Emma over Alfonzo. Cletus gets together his neighbors and they corner Alfonzo. They break every bone in his body.
Here, a Rothbardian might rationalize the following about the hypothetical scenario presented above. The rationalization will be that if it turns out that Emma was lying about having been sexually assaulted, and that Alfonzo was telling the truth, then what Cletus and the mob did to Alfonzo was wrong. Cletus and the mob initiated the use of force against a wrongfully accused man. However, continues the Rothbardian rationalization, if it later turns out that Alfonzo really had raped Emma, then what Cletus and the mob did was OK. It was fine, regardless of how reckless the mob was in rushing to judgment. Because it turned out that Alfonzo had initiated the use of force against Emma after all, what Cletus and the mob did to Alfonzo was merely issuing retaliatory force. That renders the actions of Cletus and the mob to be morally just.
Is that reasoning correct? No, it is not.
In rushing to judgment — carrying out the full brunt of violence so quickly in the absence of evidence — Cletus and the mob were acting so recklessly that they gave everyone a probable cause to ascertain that Cletus and the mob are a violent threat to everyone. It is wrong to conclude, so simply, that the violence that Cletus and his neighbors issued was justified if it later turned out that Emma’s rape accusation was true. There are cases of people being falsely accused of all sorts of initiations of the use of force. There were many cases of Black men being falsely accused of initiations of the use of force in the South during the Jim Crow era. As a result, they were lynched by vigilante mobs. That is, they were lynched by private parties acting independently of, or in “competition” against, the “monopolistic” federal government.
Here is what the Rothbardian argument overlooks. It is that, the long term, there can be no morally justified exercises of retaliatory force unless the widespread adherence to Due Process takes priority. Moreover, adherence to Due Process is inherently “monopolistic.” This essay of mine will explain what I mean by that.
In most instances where a private citizen initiates the use of force against someone, this is done in secret. If Ralph murders Jake, he will probably not do this out in the open. He will do this someplace hidden. And Ralph will dispose of the body in such a way that it will not be obvious that he was the one who committed the misdeed. The same goes for rapes. If Ralph rapes Jake, this will probably be out of view of most people. The same applies to most forms of theft committed by private citizens. Therefore, when a private citizen is accused of initiating the use of force against yet another citizen, it is seldom obvious that the accusation is true. And that is where Rothbardians hit a snag. This consideration bedevils all vigilante gangs that, in commissions of violence, claim to be issuing what is merely retaliatory force against the party that initiated the use of force.
Suppose that a man named Cletus catches his daughter, Emma, having sex with a low-status man, Alfonzo, who is of a racial minority. Cletus is horrified. Emma immediately tells Cletus that she was not consenting. She insists to her father that Alfonzo was raping her. Alfonzo professes his innocence, shouting to Cletus that Emma gave affirmative consent. But Cletus instantly believes Emma over Alfonzo. Cletus gets together his neighbors and they corner Alfonzo. They break every bone in his body.
Here, a Rothbardian might rationalize the following about the hypothetical scenario presented above. The rationalization will be that if it turns out that Emma was lying about having been sexually assaulted, and that Alfonzo was telling the truth, then what Cletus and the mob did to Alfonzo was wrong. Cletus and the mob initiated the use of force against a wrongfully accused man. However, continues the Rothbardian rationalization, if it later turns out that Alfonzo really had raped Emma, then what Cletus and the mob did was OK. It was fine, regardless of how reckless the mob was in rushing to judgment. Because it turned out that Alfonzo had initiated the use of force against Emma after all, what Cletus and the mob did to Alfonzo was merely issuing retaliatory force. That renders the actions of Cletus and the mob to be morally just.
Is that reasoning correct? No, it is not.
In rushing to judgment — carrying out the full brunt of violence so quickly in the absence of evidence — Cletus and the mob were acting so recklessly that they gave everyone a probable cause to ascertain that Cletus and the mob are a violent threat to everyone. It is wrong to conclude, so simply, that the violence that Cletus and his neighbors issued was justified if it later turned out that Emma’s rape accusation was true. There are cases of people being falsely accused of all sorts of initiations of the use of force. There were many cases of Black men being falsely accused of initiations of the use of force in the South during the Jim Crow era. As a result, they were lynched by vigilante mobs. That is, they were lynched by private parties acting independently of, or in “competition” against, the “monopolistic” federal government.
Historian James E. Cutler found that among the 2,060 documented instances of lynchings he examined, spanning the years 1882 to 1903, the second-most cited reason a vigilante mob gave for lynching its victim was that the victim either attempted or committed rape. The single-most cited reason, by a thin margin, was murder or attempted murder. Sociologist Arthur F. Raper found that among the lynchings conducted between 1929 and 1940, a third of the persons lynched were falsely accused. There were cases where an accused person was detained by police but still did not go to trial. In those situations, the lynch mob snatched this person from police and murdered him. That was what happened to Samuel “Mingo Jack” Johnson, John Henry James, Albert Martin, Lloyd Clay, and Mack Charles Parker. In the case of James Clark, he was arrested by a sheriff who then turned him over to the lynch mob rather than have him go to trial.
Should it be the case that Alfonzo was falsely accused, it is obvious that Cletus and the mob initiated the use of force against him. However, if it turned out subsequently that Alfonzo did rape Emma, that would not let Cletus and his neighbors off the hook. Because they got away with behaving so recklessly this time, there is nothing that would discourage them from behaving at least as recklessly once someone else in the community makes a similar accusation. More likely, this angry mob will feel emboldened. Every time Cletus and his neighbors exact what they judge to be “private” vigilante justice — retaliatory force in the absence of Due Process — it ratchets up the likelihood of Cletus and his neighbors violently injuring a falsely accused person on the subsequent occasion.
Issuing supposedly retaliatory violence, in the absence of Due Process, is so reckless a violent threat that, regardless of the status of the accused, it poses a violent threat to everyone. You have probable cause to believe that if a private party exacts “private” retaliatory force with impunity, absent Due Process, you are at risk of being that private party’s next target. Therefore, for private parties to issue ostensively “retaliatory” force, absent of Due Process, against someone accused of initiating the use of force, is itself an initiation of the use of force. This, too, violently imposes a cost on everyone. It is a violently imposed cost on society that is “collectivized” or “socialized.” That principle applies regardless of whether the object of the private vigilante gang’s wrath was in fact guilty of the infraction for which he was initially accused.
Moreover, if Emma lied about being raped, she would be an accessory to Cletus’s initiation of the use of force against Alfonzo. If you go around seriously accusing someone of having initiated the use of force against you, you create the great likelihood that someone — either private acquaintances or the government — will threaten violence upon the accused. Hence, falsely accusing someone of initiating the use of force is not free speech but itself an initiation of the use of force.
It is a fact that when someone is accused of initiating the use of force, it is seldom obvious whether he was guilty of doing what he was accused of doing. This fact is what renders the principle of legal Due Process to be all-important. Due Process is the single most significant protection against the implementation of the most brutally violent punishment of people who are falsely accused. Due Process is thus essential to minimizing and preventing the initiation of the use of force. If you are to stop or minimize the initiation of the use of force, you must prioritize Due Process over intra-industry economic “competition.” In essence, the principle of Due Process trumps any imaginary right to “compete” with the constitutional liberal republican Night Watchman State in the “industry” of issuing “retaliatory” force.
Killing an Assailant in the Middle of His Attack Does Not Bypass Due Process
If you are being immediately assaulted, you have every right to defend yourself violently. You need not wait for the police or any judges; you should simply act as soon as possible. Doing so, though, is not acting absent of Due Process in a constitutional liberal republican Night Watchman State. Should you kill an assailant, Due Process requires that the police at least question you about it afterward. If their investigation leads them to suspect that perhaps your violent act was not in self-defense, they might gather the evidence and have you tell your story on the witness stand. Thus, immediate acts of self-defense, where you kill an assailant, remain subject to Due Process rules in a constitutional liberal republican Night Watchman State.
The same principle applies if you intervene during an assault. If you catch Alfonzo holding a knife to Emma’s throat and forcing himself upon her, you need not wait for police. You would be justified in attacking Alfonzo that moment. Once again, that would not be bypassing Due Process — the police of a constitutional liberal republican Night Watchman State would question you afterward.
The immediacy of the threat justifies that you act before any explaining can be done to police or a judge. The same cannot be said of any supposedly “retaliatory” violence that takes place after the fact. That is, insofar as they are in a constitutional liberal republican Night Watchman State, there is no legitimacy to any supposedly “retaliatory” violence by private parties that takes place days or weeks after the initial initiation of the use of force had already commenced and ended. Maybe Emma tells Cletus on Monday that Alfonzo raped her hours earlier. Then on Thursday Cletus and his neighbors hunt after Alfonzo. That would be issuing vigilante violence after the fact. These vigilantes would not have the excuse that there was still an emergency that justified that they act immediately, independent of police or judges.
Initiations of the Use of Force Cannot Be Minimized in the Absence of Due Process
I will go briefly over what happens during Due Process. Due Process requires that before police can issue the full brunt of violent punishment upon an accused person, the police must prove beyond a shadow of a doubt that the accused truly did initiate the use of force as accused. In the process, the police must conduct an investigation. There is potential for abuse in any investigation, and that is why the courts exist as a check against police and overzealous prosecutors.
Before the police can search anything related to someone suspected of initiating the use of force, the police must first obtain a warrant. They obtain this warrant by presenting sufficient evidence to a judge. They must show that judge that that there is probable cause to discern that the accused might be guilty. Should the police fail to present enough evidence, the judge can deny the warrant and thwart the police's efforts. It is true that if the police obtain a warrant to search my home, when I have been falsely suspected of initiating the use of force, the police do impose some threat of violence upon me, an innocent man. If they get a warrant to search my home and I violently defend my home against their intrusion, they become authorized to increase the violence against me. Still, there is no way around this; nongovernmental parties have done no better.
Once the police gather enough evidence to make them confident that they can win a conviction, they make an arrest. Even then, Due Process continues to apply. The police often must read Miranda rights when apprehending the suspect. The suspect is to get a phone call. If he cannot afford his own counsel, it is provided to him by the State itself. The police must then unload all their evidence before a judge and jury. Should the judge and jury discern that the police and prosecution have failed to prove, beyond any doubt, that the accused did indeed commit the initiation of the use of force, the judge or jury can override and veto the police and prosecution by refusing to acquit.
The police and prosecution do impose some threat of force as they conduct the investigation and then apprehend the suspect, as well as in subpoenaing witnesses. Nonetheless, Due Process procedures place a sequence of procedural roadblocks to prevent the police and prosecution from implementing the full brunt of force that a vigilante gang would. The police cannot unload brutally violent penalization right away as a vigilante gang would. Despite the imperfections of how a constitutional liberal republican Night Watchman State allows for police to investigate, the Due Process is a great improvement over what lynch mobs and other vigilante parties have done. Due Process is therefore integral to protecting people from the severest initiations of the use of force from private parties. Absent of the Due Process, people would frequently be falsely accused of initiating the use of force. In turn, they would be “punished” with extreme violence. That would maximize the initiations of the use of force.
It is true that sometimes not even Due Process being followed consistently has been enough to forestall all wrongful convictions. Someone being wrongfully convicted is an initiation of the use of force against the wrongfully convicted. There are therefore two notes to make about this. First, this is a good reason why there should be a moratorium on scheduled executions. If someone is wrongfully convicted and sentenced to life in prison, only for him to be exonerated twenty years later, that is horrifying and tragic. The closest we come to having any resource is that the wrongfully imprisoned convict can be released. By contrast, if someone is executed and later shown to be innocent, there is nothing that can be done to repair that. Secondly, more-liberal republics have behaved worse than private vigilantes no more than the degree to which those more-liberal republics have veered away from strict adherence to the principles of a constitutional liberal republican Night Watchman State. To the degree that a government has adhered to the principles of a constitutional liberal republican Night Watchman State, it has behaved no worse than have private vigilante mobs.
I have previously argued that it is possible for a government to deny freedom consistently to citizens even as it upholds Due Process. I stand by that argument. Still, it is also the case that, in the long term, freedom cannot survive in the absence of Due Process. That is: Due Process can be maintained even when freedom is eliminated, but freedom cannot be maintained if Due Process is eliminated.
Minimizing Initiations of the Use of Force Requires That Information on the Context Behind All Acts of Violence Be Accessible to the Entire Literate Public
Constitutional liberal republican Night Watchman States also institute another safeguard in Due Process. That safeguard is the public accessibility of information on cases dealing with violence. Note that criminal trials are public information. Should Ralph be accused of something terribly embarrassing that stigmatizes him — such as him being accused of rape — the constitutional liberal republican Night Watchman State is to make all information on the case available to the public. Some might say that such information being publicly available is cruel because it will publicly shame Ralph and stigmatize him. In reality, the information being publicly available is for the protection of everyone in the community, including Ralph himself.
Once the police gather enough evidence to make them confident that they can win a conviction, they make an arrest. Even then, Due Process continues to apply. The police often must read Miranda rights when apprehending the suspect. The suspect is to get a phone call. If he cannot afford his own counsel, it is provided to him by the State itself. The police must then unload all their evidence before a judge and jury. Should the judge and jury discern that the police and prosecution have failed to prove, beyond any doubt, that the accused did indeed commit the initiation of the use of force, the judge or jury can override and veto the police and prosecution by refusing to acquit.
The police and prosecution do impose some threat of force as they conduct the investigation and then apprehend the suspect, as well as in subpoenaing witnesses. Nonetheless, Due Process procedures place a sequence of procedural roadblocks to prevent the police and prosecution from implementing the full brunt of force that a vigilante gang would. The police cannot unload brutally violent penalization right away as a vigilante gang would. Despite the imperfections of how a constitutional liberal republican Night Watchman State allows for police to investigate, the Due Process is a great improvement over what lynch mobs and other vigilante parties have done. Due Process is therefore integral to protecting people from the severest initiations of the use of force from private parties. Absent of the Due Process, people would frequently be falsely accused of initiating the use of force. In turn, they would be “punished” with extreme violence. That would maximize the initiations of the use of force.
It is true that sometimes not even Due Process being followed consistently has been enough to forestall all wrongful convictions. Someone being wrongfully convicted is an initiation of the use of force against the wrongfully convicted. There are therefore two notes to make about this. First, this is a good reason why there should be a moratorium on scheduled executions. If someone is wrongfully convicted and sentenced to life in prison, only for him to be exonerated twenty years later, that is horrifying and tragic. The closest we come to having any resource is that the wrongfully imprisoned convict can be released. By contrast, if someone is executed and later shown to be innocent, there is nothing that can be done to repair that. Secondly, more-liberal republics have behaved worse than private vigilantes no more than the degree to which those more-liberal republics have veered away from strict adherence to the principles of a constitutional liberal republican Night Watchman State. To the degree that a government has adhered to the principles of a constitutional liberal republican Night Watchman State, it has behaved no worse than have private vigilante mobs.
I have previously argued that it is possible for a government to deny freedom consistently to citizens even as it upholds Due Process. I stand by that argument. Still, it is also the case that, in the long term, freedom cannot survive in the absence of Due Process. That is: Due Process can be maintained even when freedom is eliminated, but freedom cannot be maintained if Due Process is eliminated.
Minimizing Initiations of the Use of Force Requires That Information on the Context Behind All Acts of Violence Be Accessible to the Entire Literate Public
Constitutional liberal republican Night Watchman States also institute another safeguard in Due Process. That safeguard is the public accessibility of information on cases dealing with violence. Note that criminal trials are public information. Should Ralph be accused of something terribly embarrassing that stigmatizes him — such as him being accused of rape — the constitutional liberal republican Night Watchman State is to make all information on the case available to the public. Some might say that such information being publicly available is cruel because it will publicly shame Ralph and stigmatize him. In reality, the information being publicly available is for the protection of everyone in the community, including Ralph himself.
Suppose I see Eli and Wilson getting into a public altercation. I did not witness the start of the battle, but I am seeing what is probably the end of it. Eli is winning the battle, beating Wilson to a pulp. I immediately conclude that Wilson is the innocent victim of Eli, and I go and beat up Eli. Eli protests that actually he was minding his own business when Wilson came at him with a knife. Eli insists that I came upon them soon after Eli disarmed Wilson. Eli says he simply continued beating up Wilson to ensure that Wilson would not be strong enough to renew his attack. Wilson insists that Eli is lying — it was Wilson who was being peaceful when Eli sprang upon him. As I beat up Eli, another passerby — George — catches sight of all of us. George quickly concludes that Eli is an innocent victim whom I took the initiative to launch an attack on. Therefore, George comes to save Eli and pummels me. Then another passerby comes into view and rushes in. This can go on and on.
When witnessing a violent dispute between two parties, people can immediately pick a side and join the violence. When someone picks a side, he believes he is fighting on behalf of the aggrieved party against the aggressor who initiated the assault. Most likely, though, he is recklessly acting on insufficient knowledge and endangering everyone violently just as Cletus and his pals did in the prior scenario.
Hence, people need to have a single place in their municipality where all the germane information about the dispute between Eli and Wilson can be accessed. This single place is where impartial investigators can ascertain who initiated the use of force. That is why it is important to have Eli and Wilson go to court and each explain their respective cases and present their own evidence. This is consistent with the principles of a constitutional liberal republican Night Watchman State. Everyone in the community is to know that if they want to learn who was the aggressor and who was the victim in the Wilson-Eli confrontation, they can retrieve it from the same source: the courthouse.
If you have been threatened with violence, or if it has already been inflicted upon you, you may be justified in fearing that if you come forward to authorities with this information, that it may put you at risk of being subjected to violent reprisals from the assailant. For that reason, in the short term it may be rational that you tell but a few people about this circumstance and ask them to keep it secret in the foreseeable future. However, that can only go so far. There is probable cause for the law to inquire as to whether this alleged assailant may pose a violent threat to parties besides you. Resultantly, in the long run, the protection of every peaceful person's rights requires that this information ultimately be publicly available. On that basis, a right to privacy does not extend to any credible accusation that you can level about someone either threatening violence or having committed it.
Upon objective examination, the court's impartial investigators — the judge and jury — should also ascertain what is the proper punishment for the party that initiated the violence. Were it not for impartial investigators conducting an objective examination, private vigilantes would easily become overzealous in deciding what is the righteous punishment. For instance, if someone accidentally dings my car, I might decide it is morally justified retaliation to chop off all that person’s fingers. Part of having cases held before the public, and having public representatives — a jury and judge — deciding on the proper punishment, is to practice the constitutional liberal republican Night Watchman State principle of stopping mindless violence. A proper government metes out no more violent punishment than what properly befits the proven charges.
Returning to the risk of wrongful convictions, the information from criminal trials being publicly available is another Due-Process guard against that. You can follow a public trial on your own accord. Suppose you ascertain that there was something amiss in the procedure that led to the conviction — that the evidence was insufficient or tainted. Under that circumstance, you can go through republican channels to help the convict receive another trial or to have the case reopened.
We want to stop or prevent two factions — one siding with Eli and the other siding with Wilson — from entering into a tit-for-tat sequence of violent reprisals against one another, each side believing it is fighting for the one who started as an innocent victim. That is the reason why information on who initiated the use of force against whom must be publicly available. Likewise, in order to guard against an innocent person receiving the full brunt of violence as punishment for an infraction for which he was wrongfully convicted, the details of his trial must be public. Those two considerations are further evidence that violence cannot be privatized Once again: violence, even in self-defense, is inevitably a public matter and is everyone’s rightful business to know about.
When it comes to understanding the fallacy in anarcho-“capitalism,” the pieces are falling into place. Violence by one party against another is something that is not confined to those two parties privately. The party that initiated the use of violence establishes itself as a threat to everyone else in the community. Everyone else in the community is a third party at risk. Whereas peaceful actions are ultimately taken on the individual level, violence by its nature is “collectivized.” That is why everyone has a right to know about every violent act, even when is in self-defense. We all have a right to know about a violent act in self-defense so that we are aware that it was just in self-defense. We know that if someone acted only in self-defense, that person does not pose as big a threat as does the party that initiated the violence. Accordingly, any act of violence is a public matter.
Vigilante violence is justified in a society no more than the degree to which its government is too corrupt to follow Due Process anyway. If you live in a kleptocracy such as one lorded over by Robert Mugabe, and your property is stolen, it is unrealistic to expect the police to catch the culprits. They will only do anything for you if you bribe them first. Only when the system is so corrupt that vigilante action cannot be more dangerous than the illiberal government itself, can vigilante action make sense. Someone is justified in trying to behave like Zorro, the Scarlet Pimpernel, or Ragnar Danneskjöld merely to the degree that this person dwells in a place comparable to Gotham City or, more literally, communism-controlled Venezuela. By contrast, the degree to which a government is a constitutional liberal republican Night Watchman State is the degree to which it has eliminated corruption. To the extent that you live under a Night Watchman State that consistently practices constitutional liberal republicanism, vigilante action cannot be justified.
Ah, but one may ask about the moral status of a private party in a constitutional liberal republic who conducts his own investigations about suspicious and potential violence-initiators as he does adhere meticulously to the rules of Due Process. Would this person be a morally upright competitor to the constitutional liberal republican Night Watchman State after all? That question shall be addressed further in this essay. We will look into that as we probe into how violence cannot help but be monopolistic.
A State’s Ability to Minimize Initiations of the Use of Force on Its Own Territory Is Weakened to the Degree That It Tolerates Neighboring States’ Disregard for Due Process
Also notice that whenever people in a region feel aggrieved and demand “retaliatory force” against aggressors, justice can be served in that region no more than the degree to which the parties issuing retaliatory violence adhere to the principles of Due Process. Consider two U.S. states adjacent to one another — say, Utah and Colorado. Imagine that Utah strictly adheres to Due Process while Colorado lets private vigilante mobs issue what they capriciously deem to be retaliatory justice. Also imagine that there are many homes along the border separating Utah from Colorado. If vigilantes run rampant in Colorado, then there will eventually develop a long-running feud where, as in the case of the Wilson-Eli example, two factions go to war, committing reprisals against one another. Naturally, each side believes itself to have aligned with the initial victim. (Note that this was the mentality behind many long-running mutual grudges, animosities, and wars between rival indigenous societies, such as the Pequot versus the Narragansett in the 1600s.)
There will come a day when these mutual reprisals reach the homes along the Utah-Colorado border, and then Utahns will be affected. Therefore, if Utah practices Due Process whereas Colorado ignores it, it is not the case that Utahns can merrily enjoy their own freedom while remaining oblivious to the violent chaos in Colorado. Maybe your society is a constitutional liberal republican Night Watchman State that practices Due Process. But if states adjacent to yours avoid Due Process, it is the case that those neighboring states’ avoidance of Due Process will cause a spillover. There will be initiations of the use of force that originate in the neighboring states and encroach upon your own state.
That is why, the more ubiquitous a constitutional liberal republican Night Watchman State’s Due Process rules become, the safer everyone becomes. If Colorado becomes a constitutional liberal republican Night Watchman State that consistently enforces Due Process, that does not merely render Colorado safer; it commensurately renders Utah safer as well. It is therefore in Utah’s interest for Colorado to be a constitutional liberal republican Night Watchman State that adheres to Due Process.
For a more real-world example, consider the U.S.-Mexican border. Many of the genuine problems that exist along the border are wrongfully blamed on immigration per se. Demagogues put the blame on Mexicans speaking a different language and peaceably practicing customs not so familiar to native-born U.S. citizens. But, to the degree that there is real violence along the border, it is a consequence — sometimes direct, sometimes indirect — of Mexico’s failures at being a constitutional liberal republican Night Watchman States that maintains Due Process. This is not to say that the United States has some duty to annex Mexico to itself and impose its own liberalization on Mexico. This is to say, though, that the degree to which Mexico becomes a constitutional liberal republican Night Watchman State, enforcing Due Process, not merely benefits Mexicans but likewise benefits the United States.
Moreover, although the USA’s influence over Mexico is no more than indirect, the fact that the USA is more politically and militarily powerful than Mexico does allow for the USA to exert some indirect influence over Mexico’s policies. Although Mexico is nowhere near as constitutionally liberal republican as the USA would prefer, Mexico would probably be liberalizing at a slower rate than it is currently if it not for the example that the USA sets for it.
All Violence, Even in Self-Defense, As Inherently Monopolistic
This indicates how the wielding of violence is inherently “monopolistic.” When one violence-issuing agency possesses firepower superior to those of other violence-issuing agencies around it, that one most powerful violence-issuing agency is able to influence the policies of those other violence-issuing agencies.. This is realization that Robert Nozick touches upon in Anarchy, State, and Utopia. The dominant agency can do the influencing directly, indirectly, or both ways. The most direct form of influence is annexation, wherein the metropole conquers the other violence-wielding agency wholly and annexes that other violence-wielding agency to the empire controlled by the metropole. An example would be Great Britain conquering India. Should the dominant violence-wielding agency refrain from annexing the other agencies directly, it can still influence the other agencies, indirectly, to change their policies. The dominant agency can remind the less-powerful agencies that the dominant agency can defeat them in battle if they refuse to comply with its wishes. An example of that would be how a particularly powerful Islamic theocracy can influence nearby Muslim-majority countries even if it does not rule them directly.
Sometimes even when two adjoining nation-state seem diametrically opposed in governing philosophy, the stronger nation-state can influence the actions of the weaker. Consider how South Korea is a more-liberal, more-capitalistic republic. By contrast, North Korea might be the most consistently communist nation-state on the planet. It would therefore initially seem that South Korea exerts zero influence over the North. Still, South Korea is able to exert influence in one respect: its superior firepower has been able to hold North Korea at bay. If not for South Korea’s superior firepower, or the fact that U.S. troops are stationed near the border, the dictator of North Korea could expand his own reach, pushing his borders out and overtaking the rest of Asia. South Korea and the United States. Hence, these other governments influence North Korea subtly in that they keep North Korea’s dominion relatively contained. The dictator of North Korea wants more of a regional monopoly on power, but this is challenged by the greater monopolistic power of South Korea and the USA.
Here is a more basic case study in how violence is inherently monopoly-seeking. Suppose a man named Barnie is trying to beat me up for no reason. Clearly he is monopolistically imposing his own will upon me. However, if I fight back in self-defense, or call the police to defend me, I am also being monopolistic. By acting in defense of my own rights to be carry on peaceably, I am monopolistically, violently imposing my own constitutional liberal republican Night Watchman State principles upon Barnie. If you are advocating the principles of a liberal republican Night Watchman State, there is one respect in which you are in a zero-sum competition against everyone who holds a differing interpretation of what constitutes a just model of society. You are in disagreement with all rival interpreters of what constitutes a justified use of violence and what constitutes an initiation of the use of force. Thus, if you get your way, then the opponents of the constitutional-liberal-republican Night-Watchman-State philosophy cannot have their way. And, vice versa, you cannot have your way if the opponents of the Night Watchman State philosophy have theirs,
Should U.S. Sen. Bernie Sanders (D-VT) influence what happens in your government, he monopolistically imposes his interpretation upon you. You have to live under his rules, which will be violently enforced. By contrast, if you get to institute a constitutional liberal republican Night Watchman State, you will be in the right, but your principles will still be violently — monopolistically — enforced on socialists who insist that there is no right to private property and no one can be said to have rightfully earned a billion dollars’ worth of assets. If socialists say they are going to take what is rightfully theirs by violently raiding your mansion, what you call self-defense will still be considered by those socialists to be a violent, monopolistic imposition of your philosophy upon them.
It is said that nature abhors a vacuum. Likewise, all violence — even in what I judge to be rightful self-defense — is necessarily a monopolistic assertion of the will of the person using the violence, the will being monopolistically asserted upon the object of that violence.
Furthermore, for argument’s sake, we might imagine the following. Imagine in a constitutional liberal republican Night Watchman State that a private party decides to conduct its own investigation on whether another party initiated the use of force. However, this private investigating party conscientiously decides to avoid being a vigilante mob rushing to judgment. This private investigative party adheres to all the necessary rules of Due Process. Should this private investigative party conduct itself in this manner, it ceases to be a private party acting in competition against the constitutional liberal republican Night Watchman State. This is on account of the private investigation party necessarily playing by the rules of the (monopolistic) constitutional liberal republican Night Watchman State.
Therefore, the degree to which that private investigative party acts in accordance with the principles of the constitutional liberal republican Night Watchman State is the degree to which that investigative party ceases to be “private.” Nay, the investigative party instead becomes a mere agent of that constitutional liberal republican Night Watchman State. That is precisely what happens when a private party makes a
“citizen’s arrest.” Hence the constitutional liberal republican Night Watchman State maintains its monopolistic authority over interpretation of what constitutes proper criminal justice procedures in the region.
Competing Justice Systems?
Now we come to the Rothbardians’ notion that all government — including that of a constitutional liberal republican Night Watchman State -- should be replaced by a system of competing, private protection agencies. When I bring up the issue of Due Process, there are two factions among the competing-protection-agencies apologists. One camp answers that it is not necessary to have Due Process be ubiquitous throughout all such agencies. The other camp answers that all such agencies will follow Due Process but they will not converge into any sort of monopolistic hegemony. I will address the former camp first.
The first camp is represented by the aforementioned David D. Friedman in The Machinery of Freedom. Again, David Friedman says that a major selling point of the competing-protection-agency system is that you will be able to shop for a wide variety of different types of legal systems. As he puts it in The Machinery of Freedom,
Some people might prefer...to patronize protection agencies that patronized courts that did not give capital punishment. Other citizens might...patronize agencies that patronized courts that did give capital punishment.There are other forms of variety. You could pledge yourself and your children to live by the rules of a socialist protection agency. You could sign up yourself and your kids to a religious fundamentalist protection agency. You could you contractually agree that if you or your kids are caught masturbating, you contractually consent to the perpetrator receiving some violent punishment. You could sign up yourself and your 14-year-old daughter to a protection agency that says that you contractually agree that if your 14-year-old daughter is caught receiving an abortion, the protection agency will come down hard on both your daughter and whomever is administering the abortion.
David D. Friedman argues that product differentiation and service differentiation are forms of intra-industry economic competition. That is what The Machinery of Freedom means in saying that “part of [the defense company’s] product is the legal system, or systems, of the courts it patronizes and under which its customers will be judged.” I will give an example of this in my own phrasing (this is my analogy; not David Friedman's). Consider how cola is a distinct flavor. Be it the circumstance that you do not like the flavor of orange juice, you can purchase a beverage with the flavor of cola. By the same token, different protection agencies would compete by offering different sets of rules — rules which you contractually agree you can be violently punished over if you break them. As David D. Friedman summarizes it,, “laws” and legal systems themselves will be “on the market.”
David D. Friedman is indeed correct that differentiation in features among products is a form of intra-industry competition. Should we follow that logic, though, that means that the more alike the different brands become to one another in the same industry, the less competitive they become. If all fossil fuels become fungible regardless of the brand selling them, that makes them less competitive. In effect, the more alike the competing brands become — the more they converge in having all the same features — the more they become a guild or cartel. That is, they become more like a monopoly or, in the case of agencies that sell “protection,” the more they act as a single cartel-ish hegemony.
That is where the difficulties begin. David D. Friedman argues that there are two major selling points to what he proposes:
- Having competing private defense agencies will maximize consumer satisfaction. They will maximize satisfaction by tailoring their sets of laws to what individual consumers want. This could result in many different types of justice systems.
- This will reduce the initiations of the use of force against everyone.
By contrast, imagine what would happen if all the competing private defense agencies ended up adopting the standards of the constitutional liberal republican Night Watchman State, including Due Process. They would cease to come in so many different “flavors.” By becoming more alike, they would become more of a cartel, more of a monopoly. And having a monopoly was what the apologists for competing private protection agencies were trying to avoid from the outset.
Indeed, David D. Friedman tells readers of The Machinery of Freedom that he is very much aware of the “objection” that
a society of different legal systems would be confusing. If this is found to be a serious problem, courts will have an economic incentive to adopt uniform law, just as paper companies have an incentive to produce standardized sizes of paper.What David Friedman overlooks is that a single paper manufacturer, such as Hammermill, actually produces sheets of paper that come in different sizes according to the purpose. By contrast, it is not so welcome for a single firm to sell violence in different packages and sizes. More importantly, the above statement of David Friedman’s undermines his original selling point — that anarcho-“capitalism” would be superb in offering a variety of flavors. Recall that the competitiveness of the system is indicated by how, in David Friedman’s words, customers could “patronize protection agencies...that did not give capital punishment” whereas others could go with those “that did give capital punishment.” David D. Friedman is trying to have it both ways when those ways are at odds.
The Rothbardians also presume that all the different agencies would be roughly equal in terms of their firepower and influence. As we noted earlier, some governments are more powerful than others. Concordantly, a particularly powerful government can end up influencing other governments’ policies. In the nineteenth century, such a tiny metropole as England was able to influence the policies in Scotland, Wales, Ireland, India, Hong Kong, Singapore, and vast regions throughout Africa. England’s influence was so vast that it was said that “the sun never sets on the British Empire.” Centuries earlier, the metropole of Mongolia influenced the laws in China, Russia, Persia, Afghanistan, India, and even Austria. Prior to the end of World War Two, the metropole that was Japan influenced the policies in Burma, China, Indonesia, and the Philippines.
There is no reason to believe that this situation would change under supposedly “competing” private defense agencies. If private protection agency A can overwhelm B, C, and D, it can influence them two ways. A can overthrow their managers and annex their clients outright. However, if all four of these agencies fear open conflict, it does not follow that B, C, and D have escaped A’s influence. Instead, A can remind them that B, C, and D would likely lose in open conflict with A, and therefore it is best that B, C, and D adopt some policies A wants them to adopt. Should that happen, A will still be exerting monopolistic, hegemonic influence over the other agencies — what was supposed to be avoided.
Conversely, if B, C, and D join forces and vanquish A, it will be the case that insofar as B, C, and D act in concert, they themselves are joining together to act as a single hegemonic cartel. Competition between two agencies that issue violence should not be thought of as being a baseball game where both teams play by the same rules. Rather, it will be the case that the team with the most points after the first four innings will have the opportunity to rewrite the rules for both teams. The winning team could even force the losing team to play by a different set of rules.
Now suppose that there are people subscribed both to agencies A and B who live in the same geographic region. Also suppose that A proclaims itself to govern under constitutional liberal republican Night Watchman State principles whereas B allows parents living under its system to molest their own children. In such a case, what the pro-competing-agencies' advocates have touted as Selling Point 2 — that the protection of individual rights against force will be maximized — will fail to materialize. Note that not even the people living under agency A will have maximum protection against the threat of the initiation of the use of force. And this is for the same reason that not even the freer Utahns were maximally safe under my prior scenario about Utah and Colorado.
In this case, because people under both agencies A and B dwell near one another, the illiberalism of B will spill over into the lives of people dwelling under A. That spillover imposes the initiation of the use of force onto the people trying to get by under A. People under A would gain maximum freedom if A pressures B into being more of constitutional liberal republican Night Watchman State. But then A would be acting as a monopolistic hegemony. And that is the condition that the competing-agencies partisans wanted abolished.
Now, let us return to the topic of children’s rights. Suppose the Parsons family subscribes to Protection Service A, which does not believe 8-year-olds to be contractually competent enough to consent to sex with fully grown adults. Protection Service B, conversely, does believe that 8-year-olds hold the contractual capacity to engage in sex with adults. The 8-year-old daughter of Mr. and Mrs. Parsons runs away to live with a 55-year-old lover subscribed to Protection Service B. Mr. and Mrs. Parsons demand that Protection Service A retrieve their daughter from the clutches of her adult lover. In turn, the adult lover asks Protection Service B to stop Service A from forcibly seizing his 8-year-old lover. After all, remember that Service B considers the 8-year-old to be living with and having sex with the 55-year-old man on her own free will. On that basis., it follows that B should interpret A’s forcible retrieval of the 8-year-old as A’s attempt to abduct the 8-year-old.
David D. Friedman assures readers that should such a disagreement emerge between two protection agencies, no violent skirmish will result. There will be no violent skirmish, say David Friedman and Murray N. Rothbard, because both agencies realize that, upon a cost-benefit analysis, they will lose more money and lives by fighting for their beliefs rather than trying to work out some compromise. In The Machinery of Freedom, David D. Friedman reminds us that “wars are very expensive...” As Protection Services A and B are, he continues, “profit-making corporations,” that necessarily makes them “more interested in saving money than face.” Ergo, conclude Rothbard and David Friedman, the two protection service firms will work out some compromise; a violent skirmish is precluded.
But that conclusion is merely wishful thinking on the part of Murray Rothbard and David D. Friedman, as Sir Norman Angell shows us.
In the years leading up to the First World War, Sir Norman Angell penned his book The Great Illusion. This work argued that, on a cost-benefit analysis, if Germany fights a war against Great Britain, Germany will incur a net loss from the conflict even if Germany wins the war. Detractors therefore assumed that Sir Norman was saying that it was impossible that an Anglo-German war would erupt. They gloated that the war breaking out refuted Sir Norman. But Sir Norman did not say what the detractors assumed he did. He did not say that the cost-benefit analysis precludes Germany from warring against Great Britain. What he said was that if Germany did war against Great Britain, Germany would incur a net loss from the war even if it won. That is an important distinction. Yes, many people might consider it obvious that A will incur a net loss if it engages in a skirmish against B. Yet it does not follow that this consideration precludes A from engaging in said skirmish anyway.
Suppose, arguendo, though, that Protection Services A and B both decide not to defend their respective principles relentlessly. In lieu of that, they try to negotiate. The clientele on each side will be disappointed. Mr. and Mrs. Parsons ascertain that their daughter, not being contractually competent, is being violated by sex with the 55-year-old adult. They maintain that their daughter has an absolute right not to succumb to statutory rape. Conversely, the 55-year-old and the little girl believe they have an absolute right to their sexual activity. If Protection Services A and B negotiate some compromise, both services will fail to uphold the principles they promised to uphold.
The problem is not solved if both protection services agree to take the case to a private arbitrator who will wholly rule in favor of one side over the other. Both disputing parties will say, “What is there to hash over? We already know the facts of the situation; the only disagreement is over the principle of whether it is right to allow a 55-year-old to have sex with an 8-year-old. Our side already knows it is morally right. Thus, this can only be settled through force. And the one satisfactory solution is for our side to emerge wholly victorious in the violent conflict, the other side granting an unconditional surrender.”
The Conflict of Interest for a Private Protection Agency
This brings to light the flaw in the other rejoinder I receive. the rejoinder is that I should be OK with competing private violence agencies because they will become nearly uniform in upholding Due Process and avoiding skirmishes against one another. Never mind that their becoming so alike will reduce their competitiveness and make them more like a cartel and therefore the monopoly that was supposed to have been precluded. The complication arrives when apologists for this system proclaim that both of the following outcomes will be reached:
Here is one thought experiment. I am subscribed to Protection Agency A. Wayne is subscribed to Protection Agency B. I burglarize Wayne’s home; I take his television set, computer, paintings, and other valuables. I readily admit to Protection Agency A that I engaged in this theft. Now, because I have already paid Protection Agency A with good money (money I had stolen from previous victims), I expect Protection Agency A to protect me when Protection Agency B seeks to retrieve for Wayne his stolen effects.
Here, again, the apologists assure us that there will be no violent skirmish between Protection Agencies A and B. Instead, they will try to negotiate some deal. I tell Protection Service A, “That is not what I am paying you for. There is no need for some fact-finding mission. I admit to everyone that I took Wayne’s property. You agreed to defend me against force. I expect that from you. Do your job.”
Perhaps Protection Agency A is offended by my demand, and it extradites me to Protection Service B. That will fulfill Agency A’s mission of upholding everyone’s rights. Yet that will commensurately renege on Protection Service A's promise to maximize consumer satisfaction.
The apologists for the competing-protection-agency system will reply that for the maximization of individual rights protection to be achieved, it is not the case that any of the protection agencies must explicitly promise to uphold everyone’s individual rights. The competing-agency proponents reply that each protection agency will only be loyal to its own clientele, and when each agency cares only about its own clientele, the inadvertent result will be that individual rights protection will be maximized. They liken this to how, if both buyers and sellers each look out for their own interest and not the others’, this will still result in a compromise on price where the fairest price is reached. Likewise, one might say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general.
The apologists' argument fails to acknowledge what is absolute and what is not. Vendors want to charge the highest possible price, and consumers want to pay the lowest possible price. They end up compromising somewhere in the middle. But that compromise does not violate anyone's principles or show any leniency to the initiation of the use of force. Some phrasing from Elan Journo of the Ayn Rand Institute is helpful here. A vendor and customer can rightfully compromise “on the details or particulars within a mutually agreed principle, but never on a principle” (emphases his). He goes on,
In the years leading up to the First World War, Sir Norman Angell penned his book The Great Illusion. This work argued that, on a cost-benefit analysis, if Germany fights a war against Great Britain, Germany will incur a net loss from the conflict even if Germany wins the war. Detractors therefore assumed that Sir Norman was saying that it was impossible that an Anglo-German war would erupt. They gloated that the war breaking out refuted Sir Norman. But Sir Norman did not say what the detractors assumed he did. He did not say that the cost-benefit analysis precludes Germany from warring against Great Britain. What he said was that if Germany did war against Great Britain, Germany would incur a net loss from the war even if it won. That is an important distinction. Yes, many people might consider it obvious that A will incur a net loss if it engages in a skirmish against B. Yet it does not follow that this consideration precludes A from engaging in said skirmish anyway.
Suppose, arguendo, though, that Protection Services A and B both decide not to defend their respective principles relentlessly. In lieu of that, they try to negotiate. The clientele on each side will be disappointed. Mr. and Mrs. Parsons ascertain that their daughter, not being contractually competent, is being violated by sex with the 55-year-old adult. They maintain that their daughter has an absolute right not to succumb to statutory rape. Conversely, the 55-year-old and the little girl believe they have an absolute right to their sexual activity. If Protection Services A and B negotiate some compromise, both services will fail to uphold the principles they promised to uphold.
The problem is not solved if both protection services agree to take the case to a private arbitrator who will wholly rule in favor of one side over the other. Both disputing parties will say, “What is there to hash over? We already know the facts of the situation; the only disagreement is over the principle of whether it is right to allow a 55-year-old to have sex with an 8-year-old. Our side already knows it is morally right. Thus, this can only be settled through force. And the one satisfactory solution is for our side to emerge wholly victorious in the violent conflict, the other side granting an unconditional surrender.”
The Conflict of Interest for a Private Protection Agency
This brings to light the flaw in the other rejoinder I receive. the rejoinder is that I should be OK with competing private violence agencies because they will become nearly uniform in upholding Due Process and avoiding skirmishes against one another. Never mind that their becoming so alike will reduce their competitiveness and make them more like a cartel and therefore the monopoly that was supposed to have been precluded. The complication arrives when apologists for this system proclaim that both of the following outcomes will be reached:
- Every private, for-profit firm recognizes that the customer is always right. Therefore, each private protection agency will seek to accommodate the tastes of its clients as much as possible, catering to what they want. A private protection agency will loyally protect its clients more fiercely than any constitutional liberal republican Night Watchman State would. C’mon: that Night Watchman State would be a complacent and sluggish monopoly not driven by the utmost market-based incentives.
- Initiations of the use of force will be minimized. Defenses of individual rights will be maximized.
Here is one thought experiment. I am subscribed to Protection Agency A. Wayne is subscribed to Protection Agency B. I burglarize Wayne’s home; I take his television set, computer, paintings, and other valuables. I readily admit to Protection Agency A that I engaged in this theft. Now, because I have already paid Protection Agency A with good money (money I had stolen from previous victims), I expect Protection Agency A to protect me when Protection Agency B seeks to retrieve for Wayne his stolen effects.
Here, again, the apologists assure us that there will be no violent skirmish between Protection Agencies A and B. Instead, they will try to negotiate some deal. I tell Protection Service A, “That is not what I am paying you for. There is no need for some fact-finding mission. I admit to everyone that I took Wayne’s property. You agreed to defend me against force. I expect that from you. Do your job.”
Perhaps Protection Agency A is offended by my demand, and it extradites me to Protection Service B. That will fulfill Agency A’s mission of upholding everyone’s rights. Yet that will commensurately renege on Protection Service A's promise to maximize consumer satisfaction.
The apologists for the competing-protection-agency system will reply that for the maximization of individual rights protection to be achieved, it is not the case that any of the protection agencies must explicitly promise to uphold everyone’s individual rights. The competing-agency proponents reply that each protection agency will only be loyal to its own clientele, and when each agency cares only about its own clientele, the inadvertent result will be that individual rights protection will be maximized. They liken this to how, if both buyers and sellers each look out for their own interest and not the others’, this will still result in a compromise on price where the fairest price is reached. Likewise, one might say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general.
The apologists' argument fails to acknowledge what is absolute and what is not. Vendors want to charge the highest possible price, and consumers want to pay the lowest possible price. They end up compromising somewhere in the middle. But that compromise does not violate anyone's principles or show any leniency to the initiation of the use of force. Some phrasing from Elan Journo of the Ayn Rand Institute is helpful here. A vendor and customer can rightfully compromise “on the details or particulars within a mutually agreed principle, but never on a principle” (emphases his). He goes on,
When you buy a car...you and the seller negotiate — come to a compromise — on the final sale price — within the mutually accepted principle of trade. But a “compromise” on a basic principle, on what you know to be true and right, is destructive: it means violating your convictions and selling out [emphasis his].
Consider the contrast to the benign compromise that is the final sales price of a car. Say that both Protection Agencies A and B are aware that I initiated the use of force upon Wayne. Disgustingly, they both still haggle over how I can make this up to Wayne. In that haggling, the implication is that Wayne's individual rights themselves are subject to compromise. Yet individual rights are absolute, rendering them nonnegotiable. To compromise them is to violate them utterly. If your Protection Agency is willing to compromise what you believe to be your rights, then your Protection Agency does not believe that those are your rights.
In a constitutional liberal republic, there are issues of criminal justice which are subject to compromise and negotiation but the principle of individual rights itself remains sacrosanct. Plea deals are negotiable but that is not a compromise on principle. Recall that someone who has initiated the use of force has given all citizens in the community a good reason to worry that they might be his next victim. Now consider two violent men — Franklin and his henchman Liddy. Liddy admits he was wrong to initiate the use of force. He is even willing to provide evidence of Franklin being the mastermind. By contrast, Franklin doesn’t budge. On this basis, Liddy is given a plea deal.
That negotiation is not a compromise on the principle that it is wrong to initiate the use of force. Instead, it is the application of another important principle. It is that someone who admits he was wrong and does something to mollify the damage is a smaller danger than is someone who initiates force and remains unrepentant about it. Applying that principle, it makes sense that Liddy’s punishment be reduced and that it be less severe than Franklin’s. As Elan Journo said, Liddy’s plea deal is a compromise within a principle but not on the principle that the initiation of the use of force must be punished. That is a far cry from Protection Services A and B not even having to start with the premise that I was wrong to initiate force on Wayne.
Defenders of the competing-agencies system might also say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general. They can say, "Both prosecution and defense only care about winning. Even then, the republic expects that justice will emerge as a result of each side only caring about its own victory. How is that worse than expecting justice to emerge as a result of Protection Services A and B prioritizing its own victory above any common interpretation of what is objectively just?"
But it is not true that in the court system, the prosecution unconditionally seeks a conviction. Nor does a prosecutor’s office always seek to maintain convictions that it won in the past. When new evidence turns up to exonerate a defendant, the prosecution is to drop the case. There are also instances of prosecutor’s offices reviewing past cases, admitting that some of those convictions were wrongful, and then helping to overturn those convictions and have those defendants released. Orleans Parish District Attorney Jason Williams worked so that the 1985 first-degree murder conviction of Raymond Flanks be overturned. Comparable was what happened in the murder case against Adnan Syed. Upon recognizing misconduct in the case, Marilyn Mosby — the state’s attorney for Baltimore City — had the charges removed.
In a constitutional liberal republic, there are issues of criminal justice which are subject to compromise and negotiation but the principle of individual rights itself remains sacrosanct. Plea deals are negotiable but that is not a compromise on principle. Recall that someone who has initiated the use of force has given all citizens in the community a good reason to worry that they might be his next victim. Now consider two violent men — Franklin and his henchman Liddy. Liddy admits he was wrong to initiate the use of force. He is even willing to provide evidence of Franklin being the mastermind. By contrast, Franklin doesn’t budge. On this basis, Liddy is given a plea deal.
That negotiation is not a compromise on the principle that it is wrong to initiate the use of force. Instead, it is the application of another important principle. It is that someone who admits he was wrong and does something to mollify the damage is a smaller danger than is someone who initiates force and remains unrepentant about it. Applying that principle, it makes sense that Liddy’s punishment be reduced and that it be less severe than Franklin’s. As Elan Journo said, Liddy’s plea deal is a compromise within a principle but not on the principle that the initiation of the use of force must be punished. That is a far cry from Protection Services A and B not even having to start with the premise that I was wrong to initiate force on Wayne.
Defenders of the competing-agencies system might also say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general. They can say, "Both prosecution and defense only care about winning. Even then, the republic expects that justice will emerge as a result of each side only caring about its own victory. How is that worse than expecting justice to emerge as a result of Protection Services A and B prioritizing its own victory above any common interpretation of what is objectively just?"
But it is not true that in the court system, the prosecution unconditionally seeks a conviction. Nor does a prosecutor’s office always seek to maintain convictions that it won in the past. When new evidence turns up to exonerate a defendant, the prosecution is to drop the case. There are also instances of prosecutor’s offices reviewing past cases, admitting that some of those convictions were wrongful, and then helping to overturn those convictions and have those defendants released. Orleans Parish District Attorney Jason Williams worked so that the 1985 first-degree murder conviction of Raymond Flanks be overturned. Comparable was what happened in the murder case against Adnan Syed. Upon recognizing misconduct in the case, Marilyn Mosby — the state’s attorney for Baltimore City — had the charges removed.
The reason behind all this is that, insofar as we have a constitutional liberal republican Night Watchman State, the stated purpose of the prosecution side is not to imprison every defendant at all costs. Nay, the objective of the prosecutor’s office is to protect the entire commonwealth from the threat of those who would initiate the use of force. The system tolerates the defense attorney trying so vehemently to win because there is a power imbalance between the State, which the prosecution represents, and the private defense counsel. The defense normally has an uphill battle, and the handicapping — letting the defense try to win, while insisting that the prosecution drop weak cases — is to even the odds. If, confronting new evidence of a defendant’s innocence, the prosecution drops the case, the prosecution is not succumbing to a conflict of interest, as the prosecution’s goal is to uphold everyone’s rights.
By contrast, if, in the interest of protecting rights as a whole, Protection Service A surrenders me to Protection Service B, Protection Service A is indeed succumbing to a conflict of interest. It breaks its pledge to cater to what the clients want. There are many people who want to get away with initiating the use of force, and they are willing to pay money to thugs who would protect them against justice. There is a lot of consumer demand for that. Should Protection Service A decide to negotiate the terms of my surrender — trying to negotiate Protection Service B into showing me some mercy — that is still an instance of Service A betraying me.
If apologists for the competing-protection-agencies system insist that the final result of their system will be maximum justice and maximum individual rights protection for all, then they must abandon that favorite selling point of David D. Friedman’s. They forfeit the authority to argue that their system is also good on account of each protection service being incentivized to fight harder and better for its clients than would a defense counsel provided to a defendant in a constitutional liberal republican Night Watchman State.
Of special significance is how the fallacy in David D. Friedman’s argument arises from a misunderstanding of priorities. In The Machinery of Freedom he happily admits that he is arguing from “a utilitarian approach” rather than claiming to be applying the moral principles of individual rights. In this respect, he is being more honest than most Rothbardians about the premise from which anarcho-“capitalist” ideology springs.
We recall that Rothbardians initially claim that anarcho-“capitalism” is the consistent implementation of the principle of individual rights and the non-initiation of force. The initiation of the use of force is banned, but the retaliatory use of force is not. Vigilantes claim they are only using retaliatory force. Rothbardism implicitly takes these vigilantes at their word. Therefore, conclude the Rothbardians, for a constitutional liberal republican Night Watchman State to battle vigilantes is to initiate the use of force on them. Rothbardians implicitly believe this to be a violation against the rights of . . . vigilantes.
But vigilantes act in defiance of the Due Process that protects the wrongfully accused. If the protection of people from violence is to have any meaning, it is on principle that Due Process must have priority. Being undiscerning in what they label “retaliatory” force, we see that vigilantes are initiating the use of force. Protecting individual rights against vigilantes involves Due Process being enforced consistently throughout the community. And that happens to the extent that the principles of the constitutional liberal republican Night Watchman State have a monopoly throughout the region.
But in claiming to value economic utility above the non-initiation of force, it appears at first that David D. Friedman’s particular pitch for anarcho-“capitalism” can escape such a critique. Rather than fuss over who is initiating force against whom, David D. Friedman is simply telling us that it is the interplay of market forces that has priority for him. But that pitch is not as clever as he likes to believe. It still suffers from an internal contradiction.
David D. Friedman is presuming that it is good and right that marketplace demand and market pressures be what shape the decisions of Protection Agencies over when and how they are to use violence. But that is backward. A society that tries to have a marketplace but not a consistent defense of individual’s rights against violence is a society that does not maximize freedom or justice. In the end, it does not even give a maximum of economic utility. David D. Friedman’s sort of inconsistency is what allowed for the transatlantic slave trade and slave auctions.
For there to be freedom, what must come first is the non-initiation of force — and, as its corollary, the Due Process that must be enforced monopolistically and on principle. Where there is intra-industry competition but not Due Process, competitors can falsely accuse others of violence and then issue some “retaliation.” It is no more than the degree to which people are monopolistically protected from force, especially by Due Process as an absolute, that any legitimate and fruitful intra-industry competition can take place and produce benefits. To the degree that Due Process is not made the priority and enforced on principle, all the intra-industry competition in the world becomes meaningless.
On principle, your individual rights against force are more important than any market pressures or marketplace demand. Adherence to your rights against force are the prerequisite to marketplace activity being of benefit to you. There is a legitimately free market and free competition no more than the extent to which your rights are first respected as absolute. The price of a product is negotiable. It can properly be haggled over. By contrast, your individual rights are nonnegotiable. They are not to be haggled over by Protection Services A and B and some private aribtrator.
In pitching anarcho-“capitalism,” most of its Rothbardian proponents express great enthusiasm when they discuss how your trial, and the terms by which violence may be used against you, are to be negotiated by Protection Service firms with allegedly clashing values. But these anarcho-“capitalists” put on the implicit pretense that this negotiation over how violence may be used on you is somehow compatible with their earlier claim that anarcho-“capitalism” is what results from the principle of the non-initiation of force being respected as absolute. In announcing that he is just being “utilitarian,” David D. Friedman is being more open about a premise that most Rothbardians do not make explicit. For all of them, this is actually not about freedom, peace, rights, and Due Process being respected on principle. It is about pretending that peace and freedom can result from beneficial intra-industry competition rather than the other way around.
The differences between David Friedman’s utilitarian approach and the Rothbardians’ deontology, then, prove to be superficial at best. Ultimately, they fall prey to the same fallacy. They presume that intra-industry competition among different provides of force is the basis for creating a society that minimizes the use of force. The reality is that the exercise of commerce does not always imply that there is peace.
It is commerce for a man to hire a hit man to bump off his wife. And although such an act is a monopolistic imposition on the wife involved, for the client and vendor there is some degree of “competition” in this area: a man can choose among different hit men affiliated with different syndicates. It is also commerce for someone to purchase a slave. In the year 1712, the government revoked the Royal African Company’s State-enforced monopoly on the slave trade in Britain. Until its changed operations in 1731, this company faced some degree of open competition in the business of providing slaves. There were other firms that could legally procure and provide slaves, even as this force was a monopolistic imposition on the slaves themselves. And legalized slave-trading continued until made illegal by the monopolistic State.
Whether private arbitrators and DROs get involved or not, the fact remains that this pretense of of intra-industry competition among for-profit violence companies does not inevitably result in peace. Commerce can occur in the absence of freedom. However, to the extent that commercial enterprise does occur amid such violence, that enterprise is irregular and not free to all. For a private, for-profit business to abduct and enslave Cinque is not freedom of enterprise, as it destroys Cinque’s freedom to enterprise. Unfree enterprise will commence in the absence of freedom, but it is only insofar as there is freedom that there is truly free enterprise — enterprise open to all.
Clean and honest free-market activity is that which is peaceful. It happens no more than the degree to which any coercive violence against human beings has been precluded. To the extent that violence erupts, even in legitimate self-defense, free-market activity has been suspended. A “free market” in force — even in self-defensive force — is a contradiction in terms.
Thus we see the fallacy in presuming that intra-industry competition among providers of force can serve as the basis for peace and freedom. We have seen that we have freedom against being wrongfully accused and beaten by vigilantes no more than the extent to which Due Process is enforced universally. Due Process is essential — far more important to protecting your freedom than is this intra-industry competition. Anarcho-“capitalists” presume that in the expression free market, the market has primacy. But no, it is the reverse. In free market, what has primacy is the free.
It can be stated in another manner. Political freedom cannot result from so-called free-market competition in the provision of force. It is that there can be any legitimate free-market competition only to the extent that political freedom has been established first. And that happens insofar as the initiation of force has been abolished, monopolistically, from the outset.
Anything Peaceful Is Private and Should Be Nongovernmental; All Violence Is of Public Importance and Must Concern the Night Watchman State
The one crucial distinction between governmental and nongovernmental organizations is that governmental organizations have the threat of socially approved violence on their side. As we know, private parties can indeed initiate the use of force. But when they do initiate the use of force, this is properly considered wrong, and most people properly expect the government to punish those private parties. Contrariwise, when the government threatens violence to enforce its own rules, the government is acting in accordance with its proper job description. The government’s authority derives from its ability to threaten socially approved violence. Violence is what characterizes any and all government, including liberal republican Night Watchman States. Where there is no threat of violence, there is no government.
Because government is nothing but socially approved violence, any enterprise that can be performed peaceably can be performed absent of direct involvement from the government.. Any time you engage in a peaceful activity, you are right to tell disapproving third parties that that they have no business to impose their disapproval violently upon you, and that they ought to butt out. Thus, any worthwhile enterprise that can be achieved peaceably should be privatized. Your child’s education is an instance of this. If other people disapprove of how you educate your children, demanding that the State indoctrinate them in ways you do not wish, you should tell those third parties to mind their own business. Another peaceable enterprise is lending libraries. Prior to city governments intruding in this area, massive lending libraries, that were open to the public, funded themselves peaceably. They did so by charging periodic subscriptions to patrons who frequented these libraries and checked books out of them.
That which is peaceful is private and individualistic, and should therefore be absent of governmental interference. Yet, by the same token, any violence that occurs anywhere, even if inflicted in putative self-defense, is never truly private. And, as a corollary, this same violence should be of concern to the public and the constitutional liberal republican Night Watchman State.
That consideration is even how the term republic came to be. That which the ancient Romans considered private and nongovernmental, they called res privata — matters (res) that are private (privata). At the same time, that which was violent and therefore necessarily of public concern was called res publica — the public matter. As violence is necessarily a public threat that cannot be isolated to private individuals or private resolution, any and every act of violence must be addressed by the “monopolistic” government of a free republic.
On Tuesday, October 22, 2019, I added the paragraph about the statistics on the victims of lynchings having been falsely accused of a crime by the lynch mobs, and also about the case studies of persons who were lynched by vigilante mobs without that person having a chance to go to trial. From Monday, January 2, to Wednesday, January 4, 2023, I revised the essay further. I made the sentences shorter and altered the grammar. I also wrote a new introduction at the start of the essay. On Tuesday, January 10, 2023, I added direction quotations of David D. Friedman from his book.. On Sunday, February 5, 2023, I added the paragraphs about plea deals and about how in free market, what must have primacy is the free part. On Monday, February 6, 2023, I added the citations of Leonard Peikoff, Harry Binswanger, and Robert Nozick.
