In what sometimes seems the interminable argument between anarcho-capitalists and "limited government" archists, one major fear of the latter is that a world of anarchism would be devoid of law, allowing the private courts and police to plunder and kill each according to its own "legal" edicts. The limited archist is joined in his skepticism over the rule of law in anarchism by various anarcho-capitalists who themselves oppose such a general law code in favor of barter and traffic between private defense agencies unhindered by general law.
One reply to both sets of skeptics is to point to the historical record: to the emergence and even the rule of law before and outside of the existence of the State. Generally accepted tribal custom, laws developed out of generally agreed upon rules by privately competitive judges, the body of the law merchant and admiralty law, a large part of the common law—all these can be considered as emerging without benefit of executive or legislative or even judicial decree by government.
But let us consider the problem more philosophically: who will decide the content of the libertarian law code of the anarcho-capitalist society of what I hope will be the future? The answer is: reason. The usual riposte: whose reason? of course misconceives the whole concept of what reason is, and comes with particular ill-grace from Randians who should know that the posing of this very question consigns the questioner to one of the lowest ranks of Hell in ATLAS SHRUGGED. If it were not ungrammatical we could reply: reason-reason, the same reason, I might add, which leads all of us, anarchist and limited archist alike, to oppose wage-and-price-controls, government paper money, victimless crime laws, and all other incursions of the State. Why was not the "whose reason" cry raised on these other issues?
In fact, it is reason which leads us to the libertarian position, and it is this same reason which decrees that vital to that very position is a general law code which defends person and property against attack, which defines property on the basis of the right to self-ownership, and which elaborates the logical implications of these axioms for protection of private property. Why should a libertarian balk at any of these provisions? The very rationality which led him to become a libertarian and to embrace the doctrine consistently also requires the acceptance of a law code which defines and defends that property. So why the fuss at this final step?
Suppose, for example, that a private defense agency in the free society takes it upon itself to consider all redheads as per se evil to be put to death wherever found. It is hardly a perplexing point to note that libertarians would condemn such a policy, on the basis of libertarian doctrine enshrined in the general law code, and that libertarian defense agencies would proceed against the antiredhead aggressors with dispatch. The question of "whose reason" need not be treated seriously. No government courts or laws are needed to tell us that murdering redheads would be a violation of their liberty. In fact, given both their essential nature and the historical record, is it not the height of folly to rely on governments, of all institutions, to define aggressions against liberty?
Murray Rothbard is professor of economics at the Polytechnic Institute of Brooklyn. Dr. Rothbard's viewpoint appears in this column every third month, alternating with the viewpoints of Tibor Machan and David Brudnoy.
This article originally appeared in print under the headline "Viewpoint: Law Without Government?".