Anarchism as Constitutionalism, Part 2

In response to my column Anarchism as Constitutionalism: A Reply to Bidinotto, Robert Bidinotto writes:

Dear Roderick Long: Your online critique of my anarchism piece was just called to my attention. Let me assure you that I still stand firmly behind what I wrote in 'The Contradiction In Anarchism.' Briefly, I don't believe your commentary begins to satisfactorily address the anarchist problem of the 'final arbiter' that I raised ' specifically, the anarchist dilemma of trying to establish a stable legal framework, while at the same time allowing individuals to retain an unlimited right to secede from that framework, and any decisions of a market-spawned legal arbiter (assuming that such an arbiter could even arise from 'the market' and attract the unanimous support it would require). Every criticism you raise against a constitutionally limited government applies as forcefully to 'market anarchism' ' in fact more so. That's because under anarchism, no final arbiter would be permitted to enforce its verdicts on anyone. By anarchist lights, all social institutions must arise through voluntary consent, and all social interactions must be based on voluntary contract. Hence, no one can be 'bound' by any agency or contract to which he has not voluntarily and personally consented. To be logically consistent with this anarchist claim of unlimited individual sovereignty, then, any legal agency or arbiter could only arise via voluntary social consensus. But it therefore would be vulnerable to the whimsical secession of the first malcontent. There is simply no way for a voluntary legal apparatus to enforce any law (or interpretation thereof), not even upon a single lone dissenter, and still remain consistent to the anarchist premise of unlimited personal sovereignty. In logic, there's really no pathway for anarchists around this sticky dilemma. It will arise in their faces immediately and often ' e. g., at the first confrontation between anti-abortionists and pro-choicers over all those alleged 'murders.' And not just over definitions of literal life-and-death importance. Common sense tells us that such a lone dissenter (call him a 'secessionist') will opt out in many cases in which a ruling goes against him; and it also tells us that the worst individuals, morally speaking, will be the first and most frequent secessionists. Such a system would reward those most prone to thumb their noses at it. But in principle, what could a voluntary legal system do about it? To simply declare (as you do) that a viable anarchism must be grounded in a favorable cultural-value consensus, is to evade that issue. While it's true that a limited government requires broad social support for its overall constitutional framework in order to survive, it does not require unanimous support for, or individual consent to, each of its specific laws, decisions, interpretations, and legal verdicts. A proper constitutionally limited government would offer processes of appeal for dissenters; but it's [sic] final court of appeal would be empowered to enforce each of its verdicts decisively. By contrast, 'market anarchism' would require much more than just a broad consensus: it would require specific agreement ' a unanimity of public opinion ' about each and all of the 'verdicts' emanating from its voluntary legal apparatus. To remain consistent with anarchist premises, those decisions could not be enforced against a single unwilling dissenter. In short, 'consent of the governed' means very different things under constitutional government and market anarchism. In the former case, the consent required is to a broad and general framework; in the latter, it would be to each specific law, decision, policy, and verdict ' and be unenforceable. In practice, anarchism would replace limited government's hated 'social monopoly of force' with social competition of force. I wish that time permitted a point-by-point response to your critique right now, but it doesn't. My current projects and area of focus can be found on my own Web site, www.ecoNOT.com, and blog, http://bidinotto.journalspace.com. I do hope to be able to get back to this issue at some other time. But I thank you for your willingness to take seriously my criticism of anarchism, and to devote to it so much of your time and attention. Robert Robert Bidinotto Publisher, www.ecoNOT.com

I thank Mr. Bidinotto for his reply. His response, however, rests on a misunderstanding of Market Anarchism. He apparently believes that, under Market Anarchism, no one may be subjected to any legal procedure to which she has not consented. I agree that this would probably be an absurd and unworkable system. But Market Anarchism does not entail, and I know of no Market Anarchist who has advocated, any such system. If I initiate force against Mr. Bidinotto, of course he does not have to get my consent before he calls in a protective agency to restrain me; nor does he have to obtain my consent before initiating court proceedings against me. (Actually 'absurd and unworkable' may be too strong a characterisation. Voluntary legal systems without coercive sanction have operated successfully in the past ' e.g., the Law Merchant. See my discussion of different kinds of legal system. My point, though, is that Market Anarchists are not committed to renouncing coercive sanctions against dissenters.) It is vitally important to avoid conflating two very different claims: a) that no legal institution has the right to employ initiatory force against unwilling dissenters, and b) that no legal institution has the right to employ retaliatory force against unwilling dissenters. Market Anarchists affirm (a), but certainly not (b). Of course many minarchists will say that they, too, affirm (a) and not (b). So wherein does the anarchist/minarchist dispute reside? The answer is that for Market Anarchists, coercively barring someone from practising any legitimate profession ' including the provision of legal services ' counts as initiation of force. So for Market Anarchists, any person has the moral right to engage in legislative, executive, and judicial services, just as any person has the moral right to run a factory. It does not follow, however, that anyone has the right to conduct her legislative, executive, or adjudicative activities in a rights-violating way, any more than a factory owner has the right to run her factory in a rights-violating way (say, by employing slave labour, or dumping refuse on others' property). Hence under anarchy there is no 'unlimited right to secede' from just legal arrangements; one has instead a limited right to secede, i.e., a right to secede so long as refrains from behaving in rights-violating ways. Market Anarchism does not include a right to commit aggression and then opt out of all legal frameworks but one's own. Under anarchy, individuals are treated like sovereign nations; that obviously does not include forswearing defensive violence against them, since sovereign nations have the right to use defensive force against one another. Of course, as Mr. Bidinotto will be quick to point out, in any society there will inevitably be disagreements as to what counts as a 'rights-violating way.' The administrators of the legal system, whether that system is anarchic or minarchic, will periodically disagree as to what rights people have. The question is: under which social arrangement, anarchy or minarchy, will these disputes be most likely to be resolved peacefully and in a manner favourable to individual liberty? Mr. Bidinotto thinks that Market Anarchism will be chaotic because there's no agency to serve as 'final arbiter.' But under minarchy, isn't there an analogous problem within the monopoly agency? Unless the government is a dictatorship, there's no one person in the government who can serve as final arbiter. (This is precisely why 17th-century theorists of royal absolutism, like Thomas Hobbes and Robert Filmer, thought that one-man dictatorship was the only stable form of government.) Nor are government officials characterised by unanimity. Yet most of the time government officials are not waging war against one another. What leads them to resolve their disputes peacefully? Constitutional restraints. But it is not as mere paper guarantees that constitutional restraints are effective. What matters is institutional structure, with checks and balances and other incentival and informational mechanisms. When minarchists ask what anarchists can rely on to maintain order in an anarchist society, the answer is: the same thing minarchists rely on to maintain order within a minarchic government. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful ' at least for minarchists ' to think of anarchy as a situation in which government has been extended to include everybody. This is what Molinari meant when he spoke of 'the diffusion of the state within society.' A 'diffused' legal system is preferable on moral grounds because it recognises the equal right of all persons to practice any legitimate profession, and because the alternative ' a monopoly government ' would necessarily run afoul of the Lockean prohibition on being a judge in one's own case. A 'final arbiter,' i.e. an agency that refuses to submit its use of force to external adjudication, is by definition lawless; thus anarchy is the completion, not the negation, of the rule of law. Anarchy 'comes not to destroy but to fulfil the law.' And a 'diffused' system is pragmatically preferable because anarchy multiplies checks and balances. Handing all power over to a single monopoly agency is too risky. One source of minarchist confusion about Market Anarchism may be a conflation of two different sorts of 'monopoly.' A Market Anarchist can certainly think that some rights-claims are correct and others are mistaken, and that agencies acting on correct views have the moral right to defend their clients, by force if necessary, against agencies acting on mistaken views. In that sense, Market Anarchists have no objection to the idea that actions based on correct views of justice have a right to a monopoly against actions based on a mistaken view of justice. What Market Anarchists deny is the further inference that this monopoly is best achieved through a monopoly agency or institution. On the contrary. Mr. Bidinotto adds some further commentary on his website:

In this time when so many societies are being violently torn asunder by competing gangs of power-seekers, it always amazes me that a small number of educated souls would fall prey to the theoretical seductions of anarchism. This tendency is unknown to most ordinary folk, who haven't the time or inclination to indulge in theoretical perversions. But it is an aberration rather common among libertarian rationalists 'by which term I mean individuals who employ a kind of deductive reductionism in the place of sound reasoning rooted in empirical fact.

With regard to the opening remark, one could equally well say: 'In this time when so many societies are being violently oppressed by governments, it always amazes me that a small number of educated souls would fall prey to the theoretical seductions of governmentalism.' With regard to the charge of rationalism, I think the empirical case for anarchism has been made, and has not yet been answered. See, for example, the citations here. In addition to Mr. Bidinotto's response, I have also heard from Saulius Muliolis, who writes:

I have read your article on market anarchism, as well as Bidinotto's original essay that you are responding to. I have a question. You write:

But of course the incentive to violate rights in order to please one's customers/constituents is going to be present both for the private protection entrepreneur in an anarchic system and for the elected politician in a governmental system. The difference, Bidinotto thinks, is that the elected politician is restrained by 'checks and balances' while the private entrepreneur is not. But Bidinotto does not explain why market incentives cannot function as 'checks and balances.'

The problem is that you don't explain how market incentives WOULD function as checks and balances. You are asking Bidinotto to prove a negative. How do you prove the positive? In the system we have now, if two institutions, such as Congress and the President, disagree on the definitions of concepts like force or property, neither can act. This is a good thing. Such disagreement causes paralysis untill [sic] the issue is resolved, which more often than not will be done in an objective manner. With competing free market agencies, I don't see how either would be restrained when they differ in opinion on wether [sic] employment is exploitation, and therefore coersion [sic]. (BTW, such a Marxist agency would have an excellent means of covering the costs of coercive action, through expropriation.) Saulius Muliolis

With regard to the charge that I have not explained 'how market incentives WOULD function as checks and balances,' I did that ' albeit briefly ' in paragraphs 14 through 17 of the post in question. (See the Molinari anarchist resources page for further references.) Mr. Muliolis says that when Congress and the President 'disagree on the definitions of concepts like force or property, neither can act.' This hasn't always been true. When the Supreme Court declared President Andrew Jackson's 'Trail of Tears' policy unconstitutional, Jackson proceeded with the policy anyway, quipping '[Chief Justice] Marshall has made his decision; now let him enforce it!' The policy of cooperation among the branches of government evolved only gradually (see, e.g., Robert Axelrod's The Evolution of Cooperation). And when cooperation finally did evolve, it did so in a malignant way, with each branch of government concurring in the expansion of the power of the others. I've argued elsewhere that incentives under Market Anarchism would favour benign forms of political cooperation while discouraging malignant ones. Markets work.