law Any system of enforceable rules would seem to be a kind of ‘law’ as the word is normally used. It is not necessary that these rules be *just, otherwise we would have to accept the implausible view that an ‘unjust law’ is a contradiction in terms. So it would be perverse to deny that *state law is a form of law. However, 1) the state did not originate law, 2) the state does not maintain law, and 3) the state’s fundamental purpose for its law is not the protection of *persons and their *property from *aggressive invasion. I shall elaborate a little on these three points.
1) Like *language, *money, and *markets, law originates and evolves *anarchically to form a *spontaneous order. All *societies require enforceable rules and they will find ways to implement these, both in stateless primitive societies and in stateless advanced ones; such as historical Ireland and Iceland more or less were before states were imposed. The state has rarely, if ever, imposed law on previously lawless societies. It has, rather, *politicized any existing legal system for its own purposes. 2) The state has merely to depoliticize the legal system for a society to revert to full anarchic law. Even as it is, much law in the form of enforceable arbitrations already exists outside the state. 3) The anarchic function of law as a service is specifically to protect persons and their property from aggression. The purpose of state law is specifically to subvert this protective purpose in order to allow the state to *proactively impose in the interests of itself and its supporters. A ‘state’ that merely protected persons and their property would not be a state. It would be a private protection agency: a business like any other.
Thus we see that accepting state law means accepting the command theory of law, sometimes known as the ‘big stick’ theory: you will do what I say because I have a big stick and will hit you if you don’t. So it is easy to see why many *libertarians view state *legislation as a perversion of real law, just as state currency is a perversion of real money.
The main criticisms of the idea that there could be efficient private law include the following three: 1) the *rich would simply buy the rules that suited them to *oppress the rest of the population, and thereby become a state; 2) private protection agencies would use aggressive force on behalf of their clients, or simply *compete in the market, until only one is dominant, which then becomes a state; or 3) all private protection agencies must agree to a common higher agency to adjudicate disputes, which higher agency then becomes a state.
Outlines of answers to these *criticisms include the following points. 1) The rich collectively do not have enough money to outbid the rest of the population. Further, given a *libertarian culture, any rogue agency would simply be regarded as *criminal and dealt with as such by all the other agencies. 2) Aggressive force is much too expensive and risky for a business to engage in (see *war). And there is no more reason to think that *competition will result in a *monopoly protection agency than that it would result in a monopoly bank. Even if it were to do so, an agency that genuinely protected persons and their property for a voluntary payment would not itself be a state any more than any other monopoly business would be. 3) In order to avoid costly conflict, it is entirely likely that competing agencies would agree on an agency to adjudicate disputes. However, these only need to be bilateral agreements, for the most part, and so there can be any number of such agencies. And, again, even in the unlikely event that a single one would be chosen by all, it would not itself be a state or engage in any aspect of aggression.
How would laws be promulgated in an anarchic society such that every individual knew which choices were open to him and which closed? In a libertarian anarchy, there is one simple, *objective, basic law (or legal principle), which would be clear enough to all: you can do whatever you like with your own person and property as long as you do not proactively impose on the persons and properties of others. If you do impose, then *restitution will be due. There is room for some occasional clarification, perhaps. But compare that to the *legislation that states typically produce: often incomprehensible, unbelievably verbose, collectively unknowable, endless, subjectively interpreted, and often inconsistent—not to mention flouting *liberty and destroying *welfare.
See *common law; *contingency fees.
A Libertarian Dictionary