Introduction
A society based on individual liberty should be founded on an ethical system which recognizes individual acts of choice as its basic structural unit. Any "law" established within such a society must be consistent with this structure. This is more than libertarian rhetoric. It should be seen as a sociological requirement by those who would found a free community, and by those who would live as its citizens. The legal structure of a statist society operates in a manner which constrains individual liberty. A libertarian society must reject many key statist legal concepts on this basis. A useful way to isolate and discard such concepts is to view them as "property rights" or simply "properties" which have been confiscated by the State. These property "rights" can then be re-allocated on the basis of individual choice, or simply abandoned—never to be recognized as valid forms of property by citizens of the new society.
Rights as a Form of Property
The late libertarian thinker Murray Rothbard had a useful perspective on the notion of property. Rothbard observed that the concept of "property" could be applied to a wide range of behavioral options, as well as material items. Thus he argued that the right of an individual to perform specific actions like "the right to paint a building a specific color" might be a "property", distinct from "the ownership of the building in all other respects." One might, given Rothbard's approach, sell all of a house to someone, save "the right to paint it red". Then one might sell "the right to paint it red" to another owner. These two separate rights or "properties" might never again come into the same hands.
Many societies with advanced division of labor economies already have similar, though less sweeping versions of this perspective. For instance, a right-of-way across a piece of land might be owned by someone who does not own the land in other respects. Mineral rights are often isolated from other landowners' rights. But Rothbard proposed using this approach much more broadly, conceiving all possible uses of a piece of matter as separate "properties" which might be distinct from "ownership" of the right to dispose of the item in other ways. In other words, any behavior towards any material object might be seen as a "property right". Thus, with Rothbard's approach, all human rights can be seen as "property rights": the "right" to dispose of an item of "property" as the "owner" sees fit. What are often called "civil rights" are simply rights derived from a person's ownership of their own body. "Intellectual property" is a variation on this approach, where a "property right" to dispose of any material object in a particular way—say using it as a means of selling a copy of a piece of copyrighted literature—are owned separately from all other rights to the material object.
While I do not like Rothbard's micro-division of house ownership, and I agree with Roderick Long's objections to the concept of intellectual property[*], I see great value in Rothbard's effort to define all claims about "rights" as claims to "property rights". Using Rothbard's system, which I will call Rothbardian Property Calculus (I know of no name by which Rothbard himself referred to this descriptive system), it is possible to describe how a given society allocates freedom and control using the concept of "property" as a term which transcends cultural differences. Even when viewing a kind of "property right" or "property claim" with which libertarians generally disagree (such as the claim of a "right" to own another person as a slave), it is possible to clearly describe the belief in such a "right" using Rothbard's approach. Any discussion of "legal rights" (in or out of the context of a free nation) can thus be placed within a notion of "property rights", which I will do for most of the rest of this essay.
But I want to explore the concept of property more fundamentally, before applying it to the concept of "law".
"Property" More Precisely Conceived
The notion "property" is often viewed as the "right" of a "propertyholder" to dispose of an "item of property" as that "propertyholder" wishes, combined with the absence of such a "right" being accorded to anyone who is not the "owner" of that "item of property". This generality is true no matter how finely or by what means one may care to divide the "item of property" into smaller "properties". But what is the actual social mechanism involved when a "property" is said to exist?
Property involves—property is—a particular kind of respect which individuals give to other individuals.
To say that someone may consider something as their "property" is to say little or nothing about the "propertyholder" or the "item of property". The essence of the status "property" lies in the fact that other individuals (not the "propertyholder") view the item of "property" as "belonging" to the "propertyholder". The "propertyholder" may use the "property", neither the respecter nor anyone else may use it (unless given permission by the "propertyholder"). It is this respect, given by individuals who do not claim the item as their "property", which counts—a respect which is given to the "propertyholder", not to the "item of property". Such respect may or may not be given by all the individuals who have access to the "item of property". And to the extent that those who are not the "owner" of the "item of property" fail to recognize the item as the "propertyholder's" possession, the property "right" does not exist in practice. We may discuss at length whether the property "right" ought to exist, but this is irrelevant to whether or not it does exist. A property "right" only exists to the extent that some "respecter" thinks it does.
Property does not require law, nor does it require philosophy—though these may be influential factors. It simply requires a specific kind of respect on the part of one individual towards another individual. This attitude is often the product of a value system, consciously adhered to by the "respecter". But it may also be the product of a habit or tradition (possibly not consciously considered by the "respecter"). It may be the product of a contract to which the "respecter" is a party. Or it may be the product of an aggressively "possessive" attitude on the part of the "propertyholder" who possesses significant power or influence over the "respecter".
The list of items which might be considered "items of property" is huge, and widely varied. Across human history many things have been considered property. Cultural traditions have differed widely regarding what might or might not be considered potential "property". But because it is possible, with Rothbardian Property Calculus, to describe any system of "rights" recognized by a given culture as that culture's "property code", it will be possible for us to examine and critique the statist cultural tradition of "law" as a specific example of a property code, and to propose alternatives.
Law as Property
Within the general territory of "property", comes a more specific set of "properties" which provide the sociological foundation for the institution of "law" in a statist society.
There is the "property" of legislation. Individuals classified in some manner as "legislators" may "own" the (usually limited) right to make additions to or changes in the "law" (though sometimes a common agreement between a class of such individuals, or perhaps a majority of such a class, is needed).
There is the "property" of the judiciary. Upon request or even on their own initiative, certain individuals might "own" the right to dictate an interpretation of the "law" regarding specific questions raised by disputing parties. This is not usually conceived of as the right to make new law, however.
There is the "property" of the executive. Certain individuals may "own" the right to "enforce the law". They may make on-the-street evaluations of systematically (or even randomly) chosen individuals suspected of violating "laws"—with or without complaints against the suspect from citizens, make serious accusations concerning "lawbreaking" about those "suspects", and if necessary direct physical force at the "suspects" while engaged in "law enforcement".
Most significant, however, is the "property" formed by the conscription of individuals into the jurisdiction of a "legal" domain. Typically, in legal systems, this involves conscripting behavior (including avoidance behavior) from "non-citizens" as well as "citizens". This is hardly unique to statist culture. Even libertarian ethical systems contain an element of conscription, at least most of them do. Libertarians usually insist that an "outsider" who initiates force or fraud is subject to retaliation, even though the "outsider" has not agreed to abstain from initiating force and fraud. But a state usually claims ownership of an unlimited power to conscript, with no permanent limits as to who may be conscripted nor what the conscripts may be ordered to do. In practice, a state usually limits the use of this power by its agents. But all states reserve the right to declare "emergencies" during which times active conscription has virtually no limits.
Only within the state's system of conscription is there any "private property". A state will recognize certain properties as being "owned" by individuals: individuals with no special status within the state's organizational structure—mere citizens. But while a citizen does not have to have special rank in order to own "private property", the property thus described is still a grant by the state to the individual. And the state reserves the right to revoke any citizen property rights at any time, as mentioned above. Further, both citizens and non-citizens are conscripted into this system. If the state decides to award "private property rights", ownership, of for instance a piece of land to one citizen, all other individuals are expected to respect the "owner's" property rights. The state reserves the right to take "private property" from one individual and give it to any other individual at any time. Thus a "private property owner" is merely a kind of state agent. As most "private property" is subject to taxation, the "owner" is de facto a renter.
Ownership of the Law in Statist Society
In a statist society, a few persons (granted the status of agents of the State—thus stewards of the State's properties) are given effective control, thus de facto ownership, of the various "branches of government". Most citizens are encouraged to believe that law making, law interpreting, and law enforcement are "properties" (though this term is not used), but not properties which they should own. Politics is thought of (or at least subconsciously conceived of) as the system by which it is decided which minority of citizens will be the ones who own the law.
Within a statist society, monopolies on the ownership of "the law" provide the grounds for much "ownership" of the citizen by the agents of the State (government officials). "The Law" becomes a vehicle for creating citizen obligations—citizen servitude to the State—citizen labor as a property owned in practice by agents of the State.
For those who can afford to pay taxes from an inherited estate (a property transfer requiring State sanction), no labor need be granted to the state. But for those who must work for a significant percentage of their time in order to pay their taxes, labor must be expended because of a government property claim against the laborer (most commonly in the form of taxes).
When government acquires the power to regulate business, it has asserted a property claim against the labor of the workers in that business. For those laborers who are working to pay taxes, at least some of such workers' time is thus owned by the government. For the hours such workers dedicate thusly to the government, these workers are the property of the government. As with livestock, various cruelties imposed on the labor force might be prohibited, thus not part of the right to human "property". But to a very real extent, these laborers, these workers—are slaves. Alternative vocabularies are used to avoid overtly recognizing this slavery, but that's what it is. The vast majority of these workers, certainly, are unwilling slaves—and would change their status if they knew how.
In addition to the laws which mandate specific citizen behaviors, various other laws prohibit specific citizen behaviors. Such laws, then, claim the prohibited behaviors as properties of the State, forbidding their ownership by private citizens. Thus the right to consume a medication which has not been approved by the State is not to be owned by a private citizen. Similarly, while a private citizen may be recognized as owning a home, and owning a particular kind of plumbing fixture, the citizen might be denied ownership of the "right" to personally install that fixture in the citizen's home. These transfers of ownership from the citizen to the State are additional, piecemeal forms of slavery.
Privatizing the Law
Ideally, in a free community, each member of the community will be consciously aware that the member's association with the community is voluntary—that the society condones no slavery. So each member would also be aware that all community members' adherence to the community's norms, whether formally expressed as "law" or not, was voluntary.
Yet many citizens would value the presence of various kinds of stability—including various property rights—within the community. In the absence of a class of privileged specialists who monopolize the ownership of the law, how could this be achieved? Alternative institutions to the socialized law of statist societies should be evolved. Individuals with no state-sanctioned rank can and should be taught how to build and adjust the traditions of property which they value.
Less Law
In statist societies most citizens object to some of the laws. In many statist societies most individuals object to most of the laws. Assuming the principle of non-initiation of force and fraud, we can suspect that there is too much law in these societies. Sometimes the excessive law is a matter of a minor preference being taken too seriously. For instance, a city council may mandate a particular style of architecture for a particular neighborhood—even though many landowners do not wish to adopt this style. Sometimes the excessive law is a matter of forcing the strong feelings of some members of a community on everyone in that community. For instance, an ordinance may ban all alcohol sales within a given municipality.
In the case of a minor preference shared by a group of individuals, but not necessarily shared by the society at large, habit and tradition within that group might be more appropriate than law. Individuals within a libertarian society might wish to encourage various behaviors on the part of their neighbors, and should be free to do so as long as they do not initiate force or fraud. But in most cases, the result would probably take the form of a wider adoption of a preferred habit—which ultimately might become a tradition, but which does not need to be a formally adopted "law".
Modularizing the Law
Other essays in Formulations have addressed the concepts of private adjudication and private protection services, which could replace state systems of judiciary and "law enforcement". There is no need to repeat them here. They are usually described as being based on contracts, and as such are voluntary arrangements. Contracts between individuals can be an important way to develop stable patterns of behavior in a libertarian society. But contracts between individuals do not provide the more general standards of ethics which many citizens will want.
To the extent that a group of individuals within some larger community wishes to agree to avoid or to mandate some behavior for themselves, that group of individuals can volunteer to adhere to such a standard. But a libertarian society should not grant them or anyone else the power to conscript others into their ethical or aesthetic preferences (beyond the non-aggression principle). However, various ethical associations could be formed—some likely based on religion, others not—which could establish rules for members. In the absence of laws (and punishments) mandating for the whole society the behaviors preferred by the members of an ethical association, the association might establish an enforcement system for its own rules. A set of property rights regarding legislation, adjudication, and rule enforcement might be set up which would apply only to association members. This property code could have a structure roughly similar to statist "law", excepting that the system would be entirely voluntary.
Would this simply mean that the ethical association was isolating itself from the rest of society—forced to avoid everyone else for the most part? No. Rule systems for ethical associations need not become the basis for segregating the members from the rest of the society. An association might operate on a very narrow basis, which would affect only limited aspects of members' lives. For instance, occupationally based ethical associations might establish rules which only affected the workplace.
To illustrate this with a more specific example, I will describe an imaginary ethical association of auto mechanics. Let's call it the Association of Especially Competent Auto Mechanics (AECAM). Members of AECAM would agree to certain standards of performance. A mechanic's religious preferences could be irrelevant to the association, as might alcohol consumption outside the workplace, opinions about various ethnic groups, hairstyle, etc. An individual mechanic could join this association and also join another ethical association, perhaps a religious group, which might hold that mechanic to other behavioral standards. The mechanic might advertise membership in one or both ethical associations. Potential customers could then either patronize or avoid the mechanic, based on the customers' own beliefs and needs.
Customers, too, might become subject to AECAM rules. A customer membership might be established, perhaps being a requirement in order to get service from AECAM-member mechanics. Or customers might be given discounts for having a vehicle serviced exclusively by AECAM-certified mechanics. Perhaps AECAM would offer an attractive auto insurance policy, based on customer members' adherence to AECAM rules regarding regular maintenance, safe driving, or other auto-ownership related issues. Under these conditions, AECAM customer members would be granting a great deal of the "ownership" of "automotive law" to AECAM.
AECAM could set up its own legislative system for establishing its rules. The association could have special courts to interpret those rules, or could endorse independent adjudication services for use regarding its rules. AECAM could endorse specific bailiff services and/or procedure's for enforcing its rules. AECAM's rules might be stricter than any current law, regarding auto maintenance. Yet AECAM would only "own" automotive (or other) law to the extent that it had established voluntary relationships with various citizens within the libertarian society.
In a libertarian society any citizen would be free to offer repair services, with no endorsement from AECAM and no license from anyone else, on the open market. If some mechanics wished to be in a professional association but were uncomfortable with AECAM, they could form another association, granting "ownership" of "auto mechanic law" to the new association. A number of customers might decide that they should "own" "auto mechanic law" and set up something like an Automotive Owners Consumer Union (AOCU). AOCU, AECAM, and an unlimited number of other organizations would thus "own" separately administered blocks of "auto mechanic law"—in much the same way that the state of France and the state of Spain each own such separate blocks of auto mechanic law today. To the extent customers or professional service providers wished to recognize such law, it could be quite influential. Such modular systems of law would probably be better enforced than similar laws by any state have ever been enforced, because for the most part participants would be motivated to adhere to the law voluntarily.
But to the extent than individuals failed to endorse AECAM's or anyone else's ownership of law, no property would exist regarding this subject—other than the self-ownership of each citizen. The same would be true for all other areas which are now arenas for "law". Much "law" would probably be abandoned, but new "law" would probably be established—as customers and entrepreneurs explored the market for law in various libertarian communities.
Wide Cooperation Between Voluntary Organizations
The only universal ethical belief that a libertarian society should have is the non-aggression principle—the rejection of initiated force and of initiated fraud. The non-aggression principle can be used to deduce a number of specific prohibitions. Further, these prohibitions are seen as universal by most libertarians. That is to say, most libertarians disapprove of initiated force and fraud in every conceivable situation. But it does not follow that most libertarians wish to interfere with, or actively support interference with, each and every case where a suspicion exists that force or fraud have been initiated. If a citizen of a libertarian society chooses not to lock the doors to their home and the home is robbed, for instance, there is no presumption that all other citizens should pay for a detective to track down the thief. In addition, it is clear that just because one citizen defaults on a contract made with another citizen, no burden on a third citizen to help enforce the contract exists automatically.
In a libertarian society characterized by an advanced division of labor and by cultural complexity, it should be expected that citizens will vary widely with respect to their voluntary submission to legal systems. Various associations with distinct property rights in law will probably emerge. Each association will probably own unique pieces of law, based on the voluntary decisions of members. For each association, a unique blend of rules regarding what is to be prohibited, what is to be mandatory, and what is of no consequence will exist. Further, each association will have a unique perspective on how many and what kind of resources should be put into enforcing the law it owns. And individuals will probably be able, within limits, to customize membership in most associations. Indeed, most individuals will probably have unique legal obligations.
Inevitably some conflicts of interest between individual associations will emerge from their differing priorities regarding rules and the enforcement of rules. Libertarian associations will have to respect each others’ differences concerning many topics—agreeing to disagree—as long as none initiate force or fraud. But a certain degree of cooperation will tend to emerge as well. When two or more associations have common rules, they may try to ally with regard to enforcement of these rules. It is likely that only a few rules will be agreed to by a majority of citizens, however, and that only rules which oppose initiated force or fraud will be accepted by all. And even within this sphere, it should be expected that cooperation between associations will not always be forthcoming—except perhaps where the "crimes" are extreme. Thus most of the uniform "rule of law" as it is understood in statist societies, will cease to exist—will cease to be anyone's property.
Individual Responsibility
A libertarian society will need citizens who respect situations where few laws apply to their neighbors—where most of these laws can be renounced if a neighbor fails to renew a contract or if the neighbor leaves an ethical association. Citizens must learn to accommodate the fact that they cannot own their neighbors or cause their neighbors to be owned via government conscription programs, as long as their neighbors refrain from initiated force or fraud. Citizens must also learn how to shop for legal systems. They must not expect to rely on the State to tell them what to do. They must learn to shop as consumers in the market for law.
But citizens should also be aware that they can be producers of law. If a citizen wishes to live in a community which adheres to some ethic, but can find no such community in existence, the citizen of a libertarian society has options that statist societies do not allow. The citizen may become a legal entrepreneur—may seek to build a new community, or to alter an existing one. In statist societies citizens are taught that ethics should be universal and imposed on everyone equally. In a libertarian society citizens need to think about establishing small social structures (sometimes with rigid rules, sometimes with just informal guidelines) which provide community to like-minded others even when the larger society does not subscribe to identical ethics.
A libertarian society needs an internal social climate which provides more than the limited tolerance granted in "liberal" societies. There must be an attitude of total self-reliance regarding ethics. Citizens must know that they live in their community by choice, and that they can choose otherwise—can leave one community and enter or build another. A citizen of a statist society can claim to be a "good citizen" by being "law abiding", yet take very little responsibility in practice for what the law is. This is not so for the citizen of a libertarian society who must choose an ethical system and how to live by it.
Getting There
In some ways, it would be harder to live in a libertarian society than
in a statist one—especially for those who do not feel comfortable with
so much personal choice. For this reason the transition to the complex
legal structure I describe above may take some time, no matter where the
idea is first tried on a practical basis. Long before a truly "Free Nation"
is expected, libertarians who support this idea should encourage a belief
in "the market for law", which is after all, just a variation of "the market
for liberty". This should include not only the excellent descriptions of
what a Free Nation's legal system might look like, as have been provided
in Formulations, but also some trial and error in the practical
world. This is especially important in the area of legal entrepreneurship.
It would be quite valuable for anyone who believes in the value of a free
nation to look for opportunities to develop voluntary legal systems in
cooperation with other like-minded individuals. In this way the habits
of individual responsibility can be fostered sooner rather than later,
and a legal culture based on an active pursuit of liberty-within-community
can lay the groundwork for a free nation in the real world. D
Phil Jacobson has been an activist and student of liberty in North Carolina since the early 1970s. For a living he sells used books, used CDs, and used video games.
[* Web editors' note: "The Libertarian Case
Against Intellectual Property Rights" by Roderick Long, Formulations,
Vol. III, No. 1]
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