We anticipated when we published Murray Rothbard's article, "Free-Market Police Courts, and Law" in our March 1973 issue, that we would provoke controversy and stimulate lively debate on the government/no government controversy. Rothbard's article, excerpted from his landmark book, FOR A NEW LIBERTY (just published by Macmillan), presented a thoughtful argument in favor of utilizing the market—rather than government—to provide all goods and services, including police protection and a court system. REASON is pleased to continue the debate by publishing Dr. John Hospers' response to the Rothbard article, together with Dr. Rothbard's reply to Dr. Hospers. Dr. Hospers is professor of philosophy at the University of Southern California and author of LIBERTARIANISM (published by Nash Press and in paperback by Reason Press).
Rothbard and Hospers are two of the leading scholars in the Libertarian movement, and REASON has made a special effort to let our readers have the opportunity this month to read and evaluate their opposing contentions concerning this uniquely libertarian controversy.
It was a pleasure indeed to read the excerpts in the March issue of REASON from Murray Rothbard's forthcoming book, TOWARD A NEW LIBERTY. The appeal of anarchism to libertarians, including limited-government libertarians, is always considerable: if government should stay out of religion, out of education, out of management-labor relations, and out of all other economic matters, well, having gone so far, wouldn't it be nice to say that government should stay out of everything—i.e., that there should be no function left for government to perform, and hence there need be no government at all? Having gone so far, why not go all the way? It would be so much more neat and tidy that way, so simple and beautiful, so aesthetically appealing. Besides, it would solve—or dissolve—at one stroke several nasty problems, such as "What right has anyone to govern my life (or any aspect of it) without my consent?" And since obviously we never (individually) consented to having government, not even limited government, having no government at all would immediately solve that problem.
Or would it? (a) It would, for those anarchist-libertarians who are content to be pacifists and not grant anyone's right to prosecute or punish another, even in retaliation. If someone mugs me or robs me, and you say I should have no recourse against him, well then, I am not (alone or thru a defense agency) doing anything against him without his consent, (b) But most libertarians, including anarchist libertarians, will not be willing to stomach this; and they believe, as indeed Rothbard does, that the aggrieved party could, via his defense agency, subject the guilty party—or the party thought to be guilty—to arrest, trial, and imprisonment. (In fact, one wouldn't have to do it thru a defense agency; one could "take justice into his own hands" and hunt the suspect down himself, without benefit of any agency, wreaking on him whatever vengeance he deems appropriate or feels like dispensing. After all, no one would be required by law to delegate to others the job of self-defense.) And this, whether done by individuals or hired agencies, is meddling with his life without his consent. The introduction of defense agencies as a substitute for government police forces, then, would in no way solve the problem of consent, since in both cases one could be subject to arrest and punishment (in the one case by the police, in the other case by the accuser or his defense agency) without one's having consented to it, or to the system of free-market defense agencies and courts which would be brought to bear against him.
Rothbard's remarks are not, however, addressed to the problem of consent; he says nothing about it, and perhaps he does not consider it a genuine problem. What he does address his remarks to is the subject of private defense (both police and army), in an attempt to show that the problems we get into with government defense (municipal and county police, national armed forces) are satisfactorily taken care of if one substitutes private defense for government defense.
I do not think that this attempt is successful. I shall give a few reasons why. But my remarks will not be an attempt to defend government as a means of defense—I am quite well aware of the problems one gets into when one has a government monopoly of anything, whether of economic goods, of education, or of defense. Rather than saying that government does solve these problems, I shall contend that the private defense agencies as envisioned by Rothbard don't solve them either—that there are problems, perhaps equally thorny, with both solutions, and in fact that some of the problems are the same whether it is government or a private agency that one resorts to for supplying the defense.
The picture Rothbard draws of competing defense agencies and competing court systems, seems to me entirely too optimistic, for a number of reasons of which I shall give just a few:
1. "'Suppose an emergency occurs and a Company A policeman sees someone being mugged; will he stop to ask if the victim has bought insurance from Company A?'…[T]his sort of street crime will be taken care of…by the police hired by whoever owns the street in question. But what of the unlikely case that a neighborhood does not have street police, and a policeman of Company A happens to see someone being attacked?" (p.7) Rothbard suggests that since the streets, like all land areas, would be privately owned the owner of the street in question "takes care of" that situation by ensuring that the street is properly guarded.
Not necessarily. It is not at all "an unlikely event" that the street will be unguarded by its owners' private patrols. The owner might not care; he might be a multimillionaire absentee owner to whom the street doesn't really matter—it might figure so minutely in his scheme of things that he not only wouldn't care whether people were mugged there, but he wouldn't care if lawsuits were brought against him for which he had to pay (though it is difficult to see how he could compulsorily be brought to court and made to pay, if the entire scheme were voluntary). In any case, it wouldn't matter much to him, so why should he care?
2. Entirely too much confidence is placed on "the good reputation" which a man or an agency wishes to uphold. A man of sufficient affluence might not care at all about this, and not need to care any more (he no longer needs other people's good will). Or, a person or agency could well be in a position to be indifferent to his reputation in the eyes of most people: consider an agency which was hired by a group of rich men to assassinate some of their favorite enemies. For a fee, they would surely do it (as the Mafia does now); they would probably do whatever brought them the most profit, and in this case they could well make the largest profits out of criminal activities, if the payers were rich enough. Enriched by their pay for crime, they could well afford to be indifferent to their reputation in the eyes of the remainder of the community.
3. Moreover, hope of financial gain is not the only motivation people have; and Rothbard's account tends to assume that people will do whatever can make them the most money. If a person feels himself to be more moral or righteous than his fellows, he may surrender a fortune in the interests of promoting his particular morality. Robert Welch was so convinced of the rightness of his convictions as president of the John Birch Society that he gave up his entire interest in a highly lucrative company when his associates in the company complained that his association with the Birch Society was hurting the company financially. And a person who is on an antipornography bender would be very likely to gather together with others who share his convictions, and form a defense agency which will arrest and try all sellers of pornography according to the rules of the newly formed agency. Even if he loses money in doing so, he will probably do it if his convictions are strong enough. And since any agency can be created when there is a demand, then as long as there is a demand (as there is) for punishing the purveyors of pornography, agencies (both defense and arbitration) would be created to meet this demand. And if most of the people in a certain community shared these antipornographic convictions, and belonged to the agency that was paid by them to implement these convictions, it would be tough for any "adult book stores" or X-rated movies in that community.
4. Nor is it true that if there were no governments there would be no atomic, bacteriological (etc.) weapons. It would all depend on how much help certain scientists and inventors decided to give to certain defense agencies. Suppose that in Beverly Hills there resides a large number of men such as Werner Von Braun and Edmund Teller, who have the know-how to make nuclear weapons for their defense agencies; and suppose that there also reside there Howard Hughes and a number of other millionaires who are not averse to mass-producing such weapons and have their agency possess them, and use these weapons against whoever they think should be prosecuted or punished. In the absence of a "legal government," who is to stop them? The same ingenuity that has led to the manufacture of nuclear weapons for governments, could lead to their manufacture for private agencies; and the same millions of dollars that have made the manufacture of these weapons by governments possible, would also make them possible in the hands of private individuals and their hired agencies. If you lived in West Los Angeles (adjacent to Beverly Hills), and for some reason were unpopular with the Hughes-Teller combine in Beverly Hills, your lot would not be an enviable one: even if you moved, their defense agency could track you down anywhere—and would, after their detectives' palms were greased to the tune of a few thousand dollars—and, for a few thousand more, they could dispose of you without leaving a trace. There would really be nothing and nobody to stop them. They would be like the lord of the manor whose serfs are his private property—only this would be an oligarchy of wealth rather than of political influence.
5. Nor would we be in a good position even against "the Russians." If all governments simultaneously disbanded throughout the world, there would be no problem—or at least that problem (nations making war on each other) would not exist. But that possibility is again science-fiction fantasy. The problem we would have to face, then, would still be what dangers would face the degovernmentalized United States once the leaders of foreign nations such as the U.S.S.R. saw a chance to take over a huge chunk of American real estate—perhaps by using a weapon that would kill off the people while leaving all the real estate intact. It would certainly present international communism with an almost irresistible temptation.
6. Perhaps the most important assumption of all in Rothbard's essay is that there would continue to be a group of defense agencies (and court systems) which would remain competitive. This is indeed one way in which the scenario could be written. But there are other ways. Suppose that one agency became so superbly efficient, or for some other reason attracted to itself so many paying customers, that it became larger than any of the other agencies, and continued to grow larger with time, until it had, say, 99% of the business for a thousand miles around. As a defense agency, it would possess most of the weapons in that area. Its leaders would then be in a position to dominate the entire region by force of arms; they could have their way with any minority agency which did not agree with their decisions. It could force its will upon the other agencies, or buy them out, or for that matter it could collude with them to provide no defense service at all, but simply turn aggressor: why should they provide service any longer when by force of arms they could take over the whole area? There are circumstances in which theft is easier than honest labor, and this might well be one of them. We would then have a defense agency grown so swollen with success that it could do just what it liked: it could turn into a criminal gang, and instead of defending its clients against aggression, as before, it could now commit aggressions against them (and against everyone) with comparative impunity. This would be in fact, if not in name, a military takeover. And the result would be, again in fact if not in name, a government—an aggressive bandit government, but a government formed exactly as most of the governments in the history of the world have been formed, by aggression, depredation, and takeover.
Every time a defense agency became that big and powerful (and what would stop it?), it would constitute a military force—and ordinary citizens would then be the victims of that military force, and would have to do as it decreed or die; and whether one called that military force an ex-defense-agency, a government, or a gang of bandits would make no difference at all to the lives and destinies of the victims.
2. A LEGAL CODE
The stance I took in the final chapter of my LIBERTARIANISM was roughly as follows: private police forces are doubtless much more efficient than those run by government; let us assume for the moment that all such forces are privately owned and operated; but (my question was) what would they enforce? They could not, or should not, be permitted to enforce their own whims, or those of their clients—torturing suspects, imprisoning people indefinitely as slave labor, and doing this for "offenses" that they happened to have personal hangups about (e.g., pornography or marijuana possession, or nothing at all), but which according to other people shouldn't be considered crimes. They should be able to enforce only the law of the land (local, state, and federal)—a body of law already enacted, and known in advance, so that one would foresee the consequences of any violation. In other words, laws should (I held) be enacted by the state, even though the enforcement of them might be left to private agencies.
While reading Rothbard on private defense agencies, then, I was anxious to see what would happen when he got to the crucial question "What would the enforcers enforce?" And I was pleased to see that he did not attempt to evade this issue; he hit it head-on, like every other issue he treated; he did indeed believe that "there must be a legal code." But not evading a problem is not the same as solving it, and I am far from satisfied that a solution was achieved. Under the heading "Necessity of a Legal Code" (p.12), Rothbard writes: "A legal code is necessary to lay down precise guidelines for the private courts. If, for example, Court A decides that all redheads are inherently evil and must be punished, it is clear that such decisions are the reverse of libertarian, that such a law would constitute an invasion of the rights of redheads. Hence, any such decision would be illegal in terms of libertarian principle, and could not be upheld by the rest of society." (He says 'could not,' but surely he should have written 'ought not'—for it clearly could be and would be if most people thought redheads were evil.) The legal code he advocates is, not surprisingly, "the libertarian principle of no aggression against person or property…" together with certain rules of evidence and a code of maximum punishment.
Very nice; but what if the majority of the members of the society are not libertarians? How would the Rothbardian legal code—which I too as a libertarian would certainly favor—get accepted? Who would see to it that it did get accepted, and what would empower him (or them) to do this? It would be pleasant to think that there would be one such code, which every judge and jury in the land would enforce. But until all men are libertarians, it seems to me that the idea that there would be just one, and that it would be accepted by all courts, is no more than wishful thinking.
What is surely more likely to happen is this: people with one set of convictions would belong to one defense agency and court system, and people with a different set of convictions would belong to a different agency and court system. Let us say that system A is libertarian, and that system B is not. I belong to system A, and my neighbor belongs to B. I take a nude swim in my pool, and my neighbor, who thinks that nudity is the most heinous of offenses, is morally outraged and decides to prosecute me. I belong to system A in which the act in question is no offense, and no one in my agency prosecutes anyone for such things. But my neighbor belongs to system B, in which nude swimming carries a penalty of twenty years. He calls his defense agency, whose men apprehend me by force and take me to one of Agency B's prisons. A member of my family, seeing me spirited off in one of the Agency B cars, phones Agency A to get me released. At this point there could be open warfare between Agency A and B; or, more likely (since my case would not be that important to either of them), there would be a confrontation between A's representative and B's representative. A would request that I be released ("The act is no crime at all, it is trivial," etc.), but B's representative would say, "You may consider it trivial but we don't, at least our clients don't, and it is our clients whom we are representing and from whom we get our business. If I didn't prosecute your man to the limit. I'd lose my business among the rather large segment of the population that has these moral convictions. So forget about the release. I'm not even going to tell you in which of our prisons we have him incarcerated." At this point, the outcome depends on how powerful Agency A is in relation to Agency B, and whether they are willing to fight about it, not being able to agree on the issue.
I am omitting many possible steps and variations, here, which do not change the principle: Agency A takes the matter to its court (or arbitration) system A, Agency B takes the matter to its court system B, and they try to settle the matter through arbitration. Perhaps they agree to have the matter settled by another court that belongs to neither system. But on the other hand perhaps they will not—they feel so strongly about the issue, A about my innocence and B about my guilt, that there is no third party they will agree on: if the court C is sympathetic to A, B will not consent to it, and if it is sympathetic to B, A will not consent. So there again is an impasse. Besides, even if they did consent to have the matter settled by court C, who or what is to ensure that the parties abide by the decision? If agency A is more powerful, and the members of agency B know it, they will probably defer to A in the end because of A's greater power; but if agency B has more weapons, then A will most likely defer to B.
Imagine a defense-agency-cum-arbitration agency, for example, in a segment of the American Bible Belt. This agency, D, will be in a position to clobber any member of the small minority of citizens who do not believe that failure to attend church every Sunday is a criminal act. The victim of such action might belong to a minority defense agency, E, in which case he will try to get E to defend him when members of D arrest him for non-church-attendance; but E will not be very effective against D, which is nearly all-powerful in the area. More likely, there will be no minority defense agency at all, so that the victim will be left to his own devices in trying to defend himself against arrest and conviction by the members of D.
Exactly the same situation would exist in the Deep South if the white majority's agency, F, chose to arrest a member of the black minority, G. Even if G (a defense agency for the blacks) existed, and assuming that the blacks could afford to pay the fees for membership, they would be relatively defenseless against the powerful agency F whose members would swoop down on them on whatever phoney pretext they chose. If a white man were guilty of a murder and his defense agency G wanted to pin the crime on the black man, there would be nothing to stop this from happening.
This is of course the way it is (or was) in the Deep South with government (state and local) law-enforcers. But this is just the point: the law is no better than its enforcers, whether these be employees of private agencies or officials of the government. And where one agency predominates in a certain area, it would in effect be the government: between a private agency so powerful that it could shove other people around, and a municipal or state police force that could do the same thing, there would be very little difference, especially to the victim.
I am not saying, then, that the problem does not exist with government police forces and government courts; I am only saying that the same problem would arise again with nongovernment agencies and courts—unless the entire society were so libertarian that they could all agree on the set of rules to be enforced and on the method of their enforcement. And if a society ever arrived at the condition of being that unanimously libertarian, then it might as well have one code of law and one set of enforcers—would there be that much difference?
The two "solutions," government law and enforcement and private law and enforcement, both face great difficulties, including some that are the same for both. The situation is reminiscent of a passage in Lewis Carroll's ALICE IN WONDERLAND:
"I like the Walrus best," said Alice, "because he was a little sorry for the poor oysters."
"He ate more than the Carpenter, though," said Tweedledee. "You see he held his handkerchief in front, so that the Carpenter couldn't see how many he took; contrariwise."
"That was mean," Alice said indignantly. "Then I like the Carpenter best—if he didn't eat so many as the Walrus."
"But he ate as many as he could get," said Tweedledum.
This was a puzzler. After a pause, Alice began, "Well! They were both very unpleasant characters.…"
Murray N. Rothbard
In view of the fact that I regard Dr. Hospers as the outstanding contemporary theorist and spokesman for "limited archy," his above comment strikes me as being highly significant. For Dr. Hospers virtually admits that he can offer no positive defense for government protection, and his strictures against anarcho-capitalism must be considered in the context of his concession about the (at least) equivalent defects of limited government. Dr. Hospers has arrived at the point where he regards anarchism as making no difference from limited government. Indifferent as between anarchism and limited government, Dr. Hospers is teetering on the edge of anarchism, and I am hopeful that he will eventually take the plunge. Certainly he is moving in the right direction.
Of course I believe that anarchism makes a great deal of difference. The anarchism/limited government controversy must be considered in two parts: the moral, and the practical or utilitarian. Morally, which for me is the prime consideration, it seems to me unquestionable that, given the libertarian premise of nonaggression, anarchism wins hands down. For if, as all libertarians believe, no one may morally initiate physical force against the person or property of another, then limited government has built within it two fatal principles of impermissible aggression. First, it presumes to establish a compulsory monopoly of defense (police, courts, law) service over some given geographical area. So that individual property-owners who prefer to subscribe to another defense company within that area are not allowed to do so. Second, the limited government obtains its revenues by the aggression—the robbery—of taxation, a compulsory levy on the inhabitants of the geographical area. All governments, however limited they may be otherwise, commit at least these two fundamental crimes against liberty and private property. And even if one were to advocate the first feature without the second, so as to have only voluntary contributions to government, the first aggressive and therefore criminal feature of government would remain. Anarcho-capitalism advocates the abolition of these two features, and therefore the abolition of the State, and the supplying of defense service along with all other goods and services on the free market.
Dr. Hospers maintains that if one private agency should "predominate in a certain area, it would in effect be the government…there would be very little difference" between that and a single government agency of protection. I will return to this problem below, but here it must be pointed out that even in these conditions, it makes a great deal of difference, because (a) individuals can always have the right to call in another, competing defense agency; and (b) the private agency would acquire its income from the voluntary purchases of satisfied customers, rather than from the robbery of taxation. In short, the difference would be between a free society and a society with built-in and legalized aggression. Between anarchism and archy.
To sum up, on moral grounds I don't think the limited archists have a leg to stand on: given the libertarian axiom, they must logically end up as dedicated anarchists.
What then of the utilitarian arguments? First, I must state that for me the claims of morality and justice are so overwhelming that utilitarian questions are of relatively little moment. But even for those libertarians who would weigh the utilitarian more heavily, I would say this: that usually in human affairs, the moral and the practical go hand in hand; and, second, that at the very least, you should agree that the moral argument sets up, not indifference, but a heavy presumption on behalf of anarchism.
Now for the specifics. Dr. Hospers, as I have noted, writes as if one private defense agency would inevitably predominate in each geographical area, and then he goes on to say that if everyone in the society is libertarian, "then it might as well have one code of law and one set of enforcers" as if the former implies the latter? What Dr. Hospers seems to be doing here is to assume implicitly that if firms are producing the same product then there would naturally or automatically be only one firm in that particular industry. But this would mean that, say, in the steel industry where many firms might be producing the same grade and type of steel, that there is need for only one firm. But this ignores all the virtues of free and active competition that economics teaches us. Many competing steel firms are almost always more efficient than one firm and we can see this truth in industry after industry over the years.
Perhaps Dr. Hospers is maintaining that the defense industry is what economists call a "natural monopoly," so that one firm in a given area will inevitably emerge, and its competitors will all go under. Perhaps, since this result can never be totally ruled out in advance. But I fail to see any reason for this contention. Until recent technological breakthroughs allowing different lines to be carried over one cable, the telephone industry was perhaps the only natural monopoly that we know about. But in the sphere of protection, we are already familiar with the fact that one city or area will have many lawyers, many judges, many insurance companies, and many companies of private guards. Why in the world should they turn out to be a natural monopoly in a totally free market? This contention makes little sense.
Furthermore, even if Dr. Hospers' implicit assumption is correct, and defense turns out to be a natural monopoly, it is still superior to compulsory monopoly. For economic analysis shows that it is not only actual competition that keeps private firms on their toes in the market, but potential competition as well. Even if there is only one firm producing a certain product, it is forced to keep its costs down and its quality high because if it fails to do so, another new firm can be created which will take away its customers. Even one single private agency would have to face such potential competition, a competition which is of course outlawed under limited government.
Dr. Hosper's entire case rests on the assumption that "equally thorny" problems would present themselves to both the anarchist and the limited government solutions. But we have already begun to indicate that the problems with anarchism (obviously no social system short of perfect people would have no problems at all) are far fewer because anarchism does not, like limited government, contain within itself a system of legalized crime and aggression. Anarcho-capitalism retains market checks and balances, market competition, and the necessity to serve customers as efficiently as possible. Limited government can contain none of these safeguards. We have already seen that the likelihood of defense and courts being a natural monopoly in which competition would disappear is very low; and that even if it were, the potential competition of new firms would still be an ever-present force.
Let us take up Dr. Hospers' other problems in turn. Suppose that a street-owner leaves his streets unguarded? There are two basic types of streets: residential and commercial. If commercial street-owners leave their streets unguarded, who in blazes would go there? The business of the merchants would fall drastically, the stores and offices would move out of these unguarded streets, and the street-owners would be left without revenue. Does Dr. Hospers think this likely to occur? As for residential streets, there would, I am sure, be some householders in a free society who will not welcome visitors; and if their streets are unguarded then they won't be receiving very many. So? Those householders who do wish to receive visitors, on the other hand, will make sure that their streets are protected.
Most of Dr. Hospers' other points boil down to saying that it is conceivable that some defense agencies will ignore the desires of their mass of consumers, and either directly become criminal aggressors or put themselves into the service of such aggressors. Certainly that could conceivably happen, given that criminals will continue to exist. But the point is that under archy, we have no safeguards whatever against those criminals who manage to constitute the designated government; under anarcho-capitalism, the mass of victims and consumers could and would hire their own competing agencies to defend them against the predators. And I tried to indicate in my REASON article that there are built-in reasons on the free market why defense agencies would tend to arise to supply this demand for legitimate protection. Under anarchism, the noncriminal public would have defenders to turn to against criminal predators; under archy, they have no defense whatever against the compulsory monopoly of government predation.
Under anarchism, moreover, there would be further built-in reasons to expect the victims and their defenders to win out. For, in contrast to the situation where government exists, these predators would have no sense of legitimacy among the public, no built-in support that the State commands for its alleged wisdom, sovereignty, etc. The aggressors would be recognized by all as bandits and treated accordingly. Lacking this sense of legitimacy, and as confirmed by history, it is extremely difficult for a bandit group to create a State anew, once the State does not exist. (It is, on the other hand, easy for bandits to acquire legitimacy by taking over an existing State apparatus.)
The "Russian Question" I think I have adequately dealt with in my REASON article.
But suppose, suppose anyway, that despite all these vital safeguards and despite its low probability, the bandit gang should at last be able to win out, and to set up a new State apparatus once again. As I wrote in REASON, then the worst that has happened is that we are back to archy once more, and, as a libertarian philosopher has stated, "at least the world will have had a glorious holiday." What Karl Marx falsely said about communism thus turns out to be true of anarcho-capitalism: We have nothing to lose but our chains by trying anarchism; we have a world to win.
LIBERTARIAN LEGAL CODE
Dr. Hospers' final strictures about anarchism concern the basic legal code. It is a curious argument; for he says, in effect, after the State has been abolished and we have anarchism, who is to ensure that everyone will adopt the same law code? But in my view, the entire libertarian system includes: not only the abolition of the State, but also the general adoption of a libertarian law code. Why does Dr. Hospers think that it would be easier to abolish the State than to agree on a libertarian law code? He says: "but what if the majority of the members of the society are not libertarians? How would the Rothbardian legal code…get accepted?" But it seems clear to me that if the majority of the public are not libertarians, the State will not get abolished either, so in practice there would be little for Dr. Hospers to worry about.
In short, in the present world, there are darned few libertarians, so therefore anarcho-capitalism is in no sense right around the corner. How do we get most people to adopt libertarianism at all—even of the limited archy variety let alone anarchism? This is a question that none of us can fully answer. But the point is that in my view "libertarianism" includes agreeing to a libertarian law code. If most people believe in outlawing nudism, then there is very little we can do about it; but this simply means that most people have not yet become libertarians. The greater the number of libertarians, the more likely that libertarianism will be adopted. The lower the number, the less likely. For Dr. Hospers' argument to have any validity at all, he would have to show that it is significantly easier to convince people to abolish the State than to let nudists alone (or abandon other examples of dictation). In my view, if we have convinced the bulk of the population to abolish the State, then they have undoubtedly been convinced already that the aggressions that the State commits (e.g., invading the rights of nudists or redheads) are immoral violations of liberty and private property. For on what other basis can we convince them to abolish their revered government apparatus?
Furthermore, to clarify my view of the legal code, gaining general libertarian acceptance would not be as difficult as Dr. Hospers believes. In my view, the legal code can be separated into two parts: (a) the basic libertarian code, which prohibits aggression against persons and private property, and which is fundamental to the libertarian position; and (b) institutional matters (e.g., whether decisions are made by judges or juries) which are not matters of libertarian doctrine and which could therefore be made the subject of free competition between the courts. It is only the basic code which protects individual rights that needs to be adopted by all the courts. And that, as I've said, is a vital part of what libertarianism is all about in the first place.
DEALING WITH "CONSENT"
Finally, Dr. Hospers raises the matter of "consent" and states that I do not deal with it. Here, we are confronted with a problem inherent in any excerpting of a chapter from a larger book; the chapter preprinted by REASON deals only with private vs. public defense. A fuller exposition of my political philosophy, which provides my answers to these questions, can be found elsewhere in the book. To boil them down, I see no reason whatever why anyone should worry about the consent of criminals to their just punishment. I believe that nothing should be done to anyone without his consent, except for the just punishment of criminals who have already violated the "consent," the person or property, of their victims. There are indeed, as Dr. Hospers indicates, two sets of people who may decide not to use private police or courts in an anarchist society. One group is the pacifists who do not believe in punishment or defensive violence; in my view, pacifists should be entitled to act on their views (which they cannot now under archy) and simply not pursue or place charges against criminals who have injured them. I do not agree with their view of violence, but I also believe that they have the perfect right not to defend themselves if they don't want to. Second are those victims who wish to pursue their aggressors themselves, without delegating their rights of defense to any private agency. Fine, too; except that these private avengers will realize that, if they go too far in their enthusiasm, and either punish the wrong people or execute someone for stealing an apple, then their victims will have the right to prosecute them in the courts. Most people will undoubtedly prefer to rely for their defense on the private courts, for two reasons: (a) because of the virtues of specialization and the division of labor—private police and courts will be more efficient defenders than the victims themselves; and (b) because the court decisions will have greater legitimacy and acceptance among the public as a whole.
This article originally appeared in print under the headline "Will Rothbard's Free-Market Justice Suffice?".