Libertarians have historically stood for a proper government. A proper government is one that recognizes and respects individual human rights. Governments have no more rights than people, because governments, fundamentally, are nothing more than people and their beliefs. Governments are justified by the belief that those who violate others’ rights are wrong, and it is not therefore wrong to force them to refrain from violating rights. But, since governments have no more rights than people, it follows that it is always wrong for governments themselves to violate any rights.
That is the main line of libertarianism, both academically (e.g., Robert Nozick or John Hospers) and popularly (e.g., Herbert Spencer or Ayn Rand). However, other libertarians reject this conclusion. They point out that, in every other area, the principle of rights leads to a free market: a society where people deal with each other voluntarily, for mutual advantage, and where no one can force another to deal with him without his consent. So why not here? Why do I have to deal with a coercive monopoly, a government? If I wish to protect my own rights, don’t I have that right? If a private company wishes to protect me, does it not have that right.? If the company and I deal with each other, by mutual consent, shouldn’t that be rightfully our choice?
In this view, the logic of liberty leads to anarchy: “the government that governs least” to the one that governs not at all. Any so-called ‘government’ would be just one of many agencies selling protection, by its own laws and standards, in the marketplace. Each person would select his own agency, and consent to its laws and standards, by purchase or contract.
Most of which a proper-government libertarian must concede. If Joe is a pacifist, and does not consent to the government’s protection, there is no right to force him to accept it. Or if Joe and John both opt out of government protection, and deal with each other by some other law, then they have that right. And if each consents to hiring a private agency to enforce their mutual law on the other, they have that right as well. Since a proper government will be committed to not violating rights, it should not interfere with any of this.
Suppose, though, that Joe suspects me of a crime (under his agency’s law) and asks his agency to enforce its law on me. I never consented to this agency’s authority; and when the agents come to my door I tell them that. They reply that if I’m innocent, I should co-operate; they’ll compensate me for any harm they do. And if I’m a criminal, they have a right to punish me, with or without my consent.
But this response begs a question. I’m not a criminal, but a suspect. Nor do I accept their offer of compensation; I do not want them to compensate me for their harm, but to leave me alone and do no harm at all. So I do not consent. If they then arrest me and search my home, anyway, they can only do so without knowing whether they have a right to do those things or not.
Even thornier situations arise when Joe’s agency and I disagree on what the law should be. Suppose Joe is a militant right-to-lifer; and my crime is that, as a doctor, I have performed an abortion (which is a capital crime under the laws of his agency). Joe’s agents find clear evidence of my guilt – but, by my (and my agency’s) law, that is no crime at all. So does Joe’s agency have a right to execute me or not? Yes, if abortion really is murder, no if it is not; but that is a controversial question, answered ultimately by opinion; and I do not want the question of whether I should be executed to depend on anyone’s opinion.
In fact, for me to do anything at all, with safety, I must know what is legally permitted and forbidden. In a proper government, that is relatively easy: the government writes down a specific list of actions which violate rights, and which therefore I am forbidden to take: all else is permitted. In the anarchist society, in contrast, I simply cannot know, in any situation, what actions I may legally take in any situation: it depends on who knows about my action, and whatever laws any of them has consented to. Nor do I know, much less consent to, each one’s standard of evidence or proof, each one’s idea of due process, or each one’s idea of punishment: everyone’s is different, and I have no idea, at any time, which ones can affect me.
Here is where the proper-government libertarian draws the line. A proper government, he points out, is strictly limited to doing only what its laws legally permit. It may give its police and courts special legal permissions, but it also imposes on them special legal obligations: they should arrest only those suspected of violating a limited number of rights-protecting laws; they should follow a due process that protects the rights of innocent suspects; they should determine guilt only by a fair (and appealable) trial; and they should punish no more than the offence deserves. Anything else would violate rights.
If private companies wish to compete with their own police and courts, government has no right to stop them. If they do so by the government’s own standard, it should grant them the same legal permissions it grants its own enforcers. But, by the same token, it can and should hold them to that standard: it can, and should, declare that private companies have the same obligations as its agents: to enforce the same laws, follow the same due process, hold the same fair and appealable trials (appealable to the government’s own courts, if the convicted party consents to that), and enforce the same punishments. If they violate that standard, it should use force against them. Anything else would violate rights.
This certainly interferes with Joe’s right to use force against me without my consent; but as I never recognized Joe’s right to use force against me without my consent in the first place, I am not impressed with that argument.
None of which ensures that anarchy will never happen – just that it will happen when, and only when, the citizens want it to happen. A proper government will depend on the voluntary support of its consumers. Either it learns efficiency and accountability (two things it surely lacks now!) from this market discipline, or its consumers will desert it for private police and private arbitrators; and it will have no right to use force to stop them. In which case, the state will wither away (and Karl Marx will have been right about something.)
But that withering will occur by the spontaneous action of the marketplace, not through political action. Tryng to abolish government politically, by violent revolution or peaceful legal euthanasia, would mean doing away with the personal security that the rule of law provides at one stroke, with no guarantees of when, or even if, a new rule of law will emerge. The best that political action can be expected to achieve is one under which anarchy may emerge by market action — in short (see above), a proper government.
Accordingly, political Libertarians must reject anarchy as a political option, and continue to pursue the goal of a proper government properly protecting individual human rights.
reprinted from Libertarian Bulletin, 22:3 (Winter 2001)
Ontario Libertarian Party
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