The Articles of Confederation, which were usurped in favor of the Constitution at the Philadelphia convention, are my kind of founding documents; the US Constitution, not so much. To the extent the Constitution comports with the natural law it is good; to the extent it doesn’t, it is bad. That has always been my position. Anyone who’s read my work over the years recognizes this.
More so than most, I have a healthy contempt for all politicians, the libertarian ones included. They are empire builders all; they see nothing wrong in using their fame and the public dime to peddle products and establish dynasties.
Some politicians are less sickening than others, but all fit snugly on The Sick-Making Scale.
The People—at least those of us who’ve never fed at the “public” trough, unlike every single politician and his aide—are always morally superior to the politicians.
The Sin of Abstraction
That said, arguing from anarchism is problematic. It is difficult to wrestle with reality from this perspective. This is not to say that a government-free universe is undesirable. To the contrary. However, the paleolibertarian is obliged to anchor his reasoning in reality and in “the nit and the grit of the history and culture from which it emerged,” in the words of columnist Jack Kerwick.
Unless remarkably sophisticated and brilliant (as only Hans-Hermann Hoppe indubitably is), the anarchist has a habit of invariably falling into sloth. Forever suspended between what is and what ought to be, he settles on a non-committal, idle incoherence, spitting venom like a cobra at those who do the work he won’t or cannot do: address reality as it is. This specimen has nothing to say about policy and politics for fear of compromising his theoretical virginity.
Suspended as he is in the arid arena of pure thought, the garden-variety libertarian anarchist will settle for nothing other than the immediate and absolute application and acceptance of the anarchist ideal. And since utopia will never be upon us, he opts to live in perpetual sin: the sin of abstraction.
The mindset described is not only lazy but—dare I say?—un-Rothbaridan. For Murray Rothbard did not sit on the fence reveling in his immaculate libertarian purity; he dove right into “the nit and the grit of the issues.”
And the “nit and grit” for this not-quite anarchist has to do with the problems presented by the private production of justice.
Competing Theories of Justice
While competing protection agencies are both welcome and desirable; an understanding of justice, predicated as it is on the natural law, does not allow for competing views of justice. In anarchy, fundamentally different, competing views of justice (right and wrong) will arise. It’s inevitable. How does one reconcile this reality with the natural law and the emphasis on the search for truth as the ultimate goal of justice?
To let the victim forfeit—or choose his own form of—redress for certain misdemeanors is fine. Many legal solutions are a result of mediation and other perfectly private solutions to non-violent offenses.
To leave punishment for murder or rape to the vicissitudes of the victim or his proxies is, however, unacceptable. The likelihood that in a stateless state-of-affairs, a victim or her proxies will choose to let a violent offender go free in favor of financial restitution cannot be ignored or tolerated. It matters not that such an eventuality may be rare, or that similar injustices occurs under the state. It should never happen. Not under the state. Not under anarchy.
Furthermore, does the voluntary forfeiture of just retribution not imply, in the case of murder, that the right to life is a right the victim’s proxies can choose to alienate or relinquish at will? How else does one construe this position?
The danger of reducing justice, in cases of violent crimes like homicide, to a negotiated deal amounts to moral relativism and a recipe for nihilism. Again: The belief in the immutably just nature of the natural law has prompted me to question the wisdom of the private production of defense, as it could give rise to legitimate law-enforcement agencies that enforce laws for communities in which natural justice has been perverted (Sharia, for example).
Anarchists also ignore that a violent offender presents a clear and present danger to others, and that his fate, at least in a civilized society, is not only the prerogative of the victim.
Libertarian anarchists will rightly counter that, under a minimal state and certainly under the state today, criminals could—and do every day—get away with murder. This is because the justice system is horribly flawed. This fact is insufficient a reason to support a state of affairs where, as a matter of principle, proportional, moral retribution will not necessarily be the goal of justice. (The kind of justice sought in anarchy would depend on the victim, right? It is unlikely that she will support unconditional love as an antidote to rape, but if she’s of the left, it’s possible.)
One anarchist retorted thus: “If a woman is raped, she could demand proportional restitution (e.g., whatever fines imposed on the criminal necessary for the emotional harm caused her, including castration and the unexpected forced rape of the criminal). The criminal would simply be enslaved to the victim (or her punishment agency, more likely, if she didn’t want to deal with him), until repayment had been met. The court could decide, for example, that for restitution, the rapist is to pay the victim $1 million and be violently raped himself.”
What was suggested above is barbaric vigilantism. What if the offender dies due to the castration or the forced rape? Is that proportional justice? I don’t conceal my preference for Western tradition, nor the positive view I have of the accretive genius of the common law. Indeed personalized retaliatory “justice” may well take the form of vendetta, not justice, under a system in which competing theories of justice prevail. Under anarchism, the proposal above could be adopted as a matter of principle rather than as an aberration to be rectified.
Civilized, moral retribution should aim to avoid such barbarism.
Justice for All vs. Client-Centered Justice
As to the idea that “the criminal would simply be enslaved to the victim or her punishment agency”:
1. As was observed, victims could demand disproportionate punishment and the enforcement agency would comply. 2. Some victims will not be covered by a “punishment agency.” Who sees to it that justice is meted in the case of those who cannot afford or opt not to contract with a private protection firm? There is little if no incentive for an agency to pursue a dangerous offender who has not harmed their client. Do we, then, rely on good Samaritans to take up arms and hunt down the offender? Or do we as a society, through the common law, make a public declaration of the few abiding values we wish to uphold (i.e., he must be brought to justice and tried in a court of law).
To the extent possible, there must be a commitment, however imperfect, to justice for all and not only for those who’ve contracted with a private protection agency.
So while the current criminal justice system is often egregious in its approach to victims, the characterization of the private production of defense as “victim-centered” seems misleading. It is client-centered.
Again, that we suffer depredations under the state is not sufficient an argument for making this state-of-affairs a viable, “principled” option, which would likely be the case under anarchy.
Finally, anarchists often make their case with wacky references to anarchism in small homogeneous societies—Medieval Viking Age Iceland—or even less convincingly, among the murderous tribes of Africa. For some loopy reason, they prefer this no-man’s la-la land to the followers of John Locke.
Ultimately, it is better to distinguish good from bad arguments than to separate anarchist from minarchist positions. A good argument—also the goal of libertarian justice—would be to advance just, rights-based positions.
Ilana Mercer is a paleolibertarian writer, based in the U.S. She is a contributor to Junge Freiheit, Germany’s finest weekly, and is a fellow at the Jerusalem Institute for Market Studies. Her latest book is “Into the Cannibal’s Pot: Lessons For America From Post-Apartheid South Africa.” Her website is www.IlanaMercer.com. Follow her on Twitter. “Friend” her on Facebook.