GENUINE CHECKS AND BALANCES OF THE FREE MARKET
Murray Rothbard asserts there are genuine checks and balances of the free market, genuine in contrast to the phony check and balances of a state system, where all the alleged balancing agencies are in the hands of one monopoly government. Indeed, given the monopoly protection service of a state, what is there to prevent a state from using its monopoly channels of coercion to extort money from the public? What are the checks and limits of the state? None, except for the extremely difficult course of revolution against a power with all of the guns in its hands.
In fact, the state provides an easy, legitimated channel for crime and aggression, since it has its very being in the crime of tax theft, and the coerced monopoly of protection. It is the state, indeed, that functions as a mighty protection racket on a giant and massive scale. It is the state that says: Pay us for your protection or else. In the light of the massive and inherent activities of the state, the danger of a protection racket emerging from one or more private police agencies is relatively small indeed.
Moreover, it must be emphasized that a crucial element in the power of the state is its legitimacy in the eyes of the majority of the public, the fact that after centuries of propaganda, the depredations of the state are looked upon rather as benevolent services. Taxation is generally not seen as theft, nor war as mass murder, nor conscription as slavery. Should a private police agency turn outlaw, should Prudential become a protection racket, it would then lack the social legitimacy which the state has managed to accrue to itself over the centuries.
Prudential would be seen by all as bandits, rather than as legitimate or divinely appointed sovereigns bent on promoting the common good or the general welfare. And lacking such legitimacy, Prudential would have to face the wrath of the public and the defense and retaliation of the other private defense agencies, the police and courts, on the free market. Given these inherent checks and limits, a successful transformation from a free society to bandit rule becomes most unlikely. Indeed, historically, it has been very difficult for a state to arise to supplant a stateless society; usually, it has come about through external conquest rather than by evolution from within a society.
Within the anarchist camp, there has been much dispute on whether the private courts would have to be bound by a basic, common law code. Ingenious attempts have been made to work out a system where the laws or standards of decision-making by the courts would differ completely from one to another. But in Rothbard's view all would have to abide by the basic law code, in particular, prohibition of aggression against person and property, in order to fulfill Rothbard's definition of anarchism as a system which provides no legal sanction for such aggression.
Suppose, for example, that one group of people in society holds that all redheads are demons who deserve to be shot on sight. Suppose that Jones, one of this group, shoots Smith, a redhead. Suppose that Smith or his heir presses charges in a court, but that Jones's court, in philosophic agreement with Jones, finds him innocent therefore. It seems to Rothbard that in order to be considered legitimate, any court would have to follow the basic libertarian law code of the inviolate right of person and property. For otherwise, courts might legally subscribe to a code which sanctions such aggression in various cases, and which to that extent would violate the definition of anarchism and introduce, if not the state, then a strong element of statishness or legalized aggression into the society.
But again Rothbard sees no insuperable difficulties here. For in that case, anarchists, in agitating for their creed, will simply include in their agitation the idea of a general libertarian law code as part and parcel of the anarchist creed of abolition of legalized aggression against person or property in the society.
In contrast to the general law code, other aspects of court decisions could legitimately vary in accordance with the market or the wishes of the clients; for example, the language the cases will be conducted in, the number of judges to be involved, and so on.
There are other problems of the basic law code which there is no time to go into here: for example, the definition of just property titles or the question of legitimate punishment of convicted offenders ?? though the latter problem of course exists in statist legal systems as well. The basic point, however, is that the state is not needed to arrive at legal principles or their elaboration: indeed, much of the common law, the law merchant, admiralty law, and private law in general, grew up apart from the state, by judges not making the law but finding it on the basis of agreed-upon principles derived either from custom or reason. The idea that the state is needed to make law is as much a myth as that the state is needed to supply postal or police services.
An anarchist system for settling disputes would be both viable and self-subsistent: that once adopted, it could work and continue indefinitely. How to arrive at that system is of course a very different problem, but certainly at the very least it will not likely come about unless people are convinced of its workability, are convinced, in short, that the state is not a necessary evil.
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