This article was published in the Summer 1999 issue of Formulations
by the Free Nation Foundation

– Dialog –

Basic Questions About a Free Nation

by Roy Halliday, Spencer MacCallum, and Philip Jacobson

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[Editor’s note: This interview was synthesized from several messages posted in FNF’s new eGroup (see the News Note about this group on page 4). The exchange started when Roy Halliday sent a list of nine questions to participants. He began by saying "The purpose of this e-mail group is to air ideas about a free nation—a nation in which the opportunities for voluntary actions are maximized and the use of physical coercion and threats of violence are minimized."]

RH: How can a free nation defend itself from foreign military attack?

SM: By keeping a low political profile, observing strict neutrality, and perhaps contracting with General Electric or a related firm for some technological deterrence. As the world becomes more entrepreneurial and less political, there will be less occasion for violence of any kind. I don't think defense will be a very important issue in the future.

PJ: One theory which I've heard and respect is that the free nation should develop trade with potential enemies. The more the potential aggressor values the trade, the less attractive an attack would be.

RH: How much government, if any, is necessary for a viable free nation?

SM: If by "government" we mean public administration financed by taxes, none. Otherwise, "government" means all the coordinating and feedback mechanisms of the marketplace, among which competition is foremost. In this sense, the more government the better.

PJ: I'm not sure I agree that "the more government the better", even with this definition. In some arenas a market may not evolve, competition may not be deemed desirable.

RH: How can services that are currently provided by nation-states be provided voluntarily?

SM: We may give nation-states more credit than they are due for providing any services at all to their populations. Certainly on net, taking into account democide, their services must be negative. If we read economists such as Fred Foldvary Public Goods And Private Communities: The Market Provision Of Social Services or Bruce Benson The Enterprise Of Law: Justice Without The State, it would appear that there are no services that cannot be provided competitively through the free market. My own little book, The Art Of Community, explores the same theme from an anthropological perspective.

RH: What laws would have to be enforced to provide the most overall freedom?

SM: If by "laws" we mean statutes, none. It seems unlikely that any statutory enactment can ever contribute, on net, to freedom of action in the world. Customary law, on the other hand, such as common law, the Law Merchant, the Halacha, and so forth contribute in a major way to the freedom of choice people enjoy.

RH: Who should make the laws and how?

SM: Property owners in the course of administering that which they own, whatever it may be. This includes private courts and those who administer them. Rules evolve through a discovery process of what works to the satisfaction of all parties.

PJ: When social institutions are formed, the customs associated with these should prevail instead of law to the maximum extent possible. Anything more formal should be established only on the basis of the consent of the governed. As long as no one is conscripted into a legal system (given the primacy of the libertarian mandate against initiated force), market forces can determine who makes the law — to the extent that there is any law.

RH: Who should enforce the laws and how?

SM: The same as [the previous question]. I suspect that those who use no violence or who use the least possible violence in enforcement will find themselves at a competitive advantage over others.

RH: Would a free nation have prisons? If so, who would run them and who would pay for them?

SM: There is no reason why there should not be prisons, if they represent a market opportunity. Like anything else, prisons would be run and paid for by their owners. Residents would be "outlaws"—people who had put themselves outside of the law and had repudiated its protection by refusing to appear at hearings or acknowledge judgments against them. Prisons would be community-like facilities operated competitively in the market, providing rehabilitation and opportunities for earning under conditions of safety in order to build up personal resources, pay restitution owed, and so forth.

PJ: I don't like the concept of a prison. If, by some means, an individual is determined to be at odds with a libertarian community, that community should use ostracism as its primary deterrent — the individual should lose interactive privileges. This can be done in stages. Perhaps the individual is not allowed in certain places at first. Perhaps the individual is refused credit at some point. Various other courtesies and privileges can be removed in order to make the punishment harsher. As a last resort the individual is declared an "outlaw" — their conflict is so severe that the community totally refuses interaction. For stricter communities, a final step might be to assume that some types of violence directed against the outlaw would always constitute retaliatory force (as authorized by a certified victim), thus granting forgiveness to anyone who might assault the outlaw with intent to kill.

RH: What is the most practical way to establish a free nation?

SM: As an entrepreneurial venture offering safe environment and services competitively in the market for a profit. Not as an ideological venture.

PJ: [This is] too big and wide a question for me to give a short answer, even in summary. FNF needs to devote several Forums to this one!

RH: What beliefs must the citizens of a free nation share?

SM: That life can be wonderfully good, being the open door to infinite opportunities for creative endeavor, and that freedom is of immediate personal value in the pursuit of happiness. (For this purpose, it makes little difference how one defines "freedom," whether more broadly as one's range of available options—having to do with such things as personal competence, the advance of scientific knowledge and the specializations of the market—or more narrowly as absence of restraint imposed by others.)

PJ: That citizens of the free nation should renounce initiated force.

RH: Spencer, I liked your answers to the nine questions. The answer that I have the most trouble agreeing with is the one about prisons. So that is the issue I want to discuss.

The idea of free-market prisons strikes me as an oxymoron. I suppose there could be a market in prisons in that they could be owned by various private groups, they could compete with each other, entry into the industry could be open rather than monopolized, they could charge prices and gain the benefits of efficient allocation of resources that go along with markets, and so on. But couldn't we say the same things about a slave market? Or a market for stolen goods? If murderers compete with each other for contracts, would we call that a free market?

I think we need to make a distinction between markets in which all the property rights exchanged are legitimately owned by the parties to the exchange and markets in which some of the property being exchanged does not legitimately belong to the person who exchanges it. The former are legitimate markets and the latter are fraudulent markets.

Can prisons fit into a legitimate market, or do they only fit into a fraudulent market?

SM: This is entirely speculative on my part about prisons! I seem to remember someone having given thought to it quite a number of years ago and working out an interesting picture. Perhaps someone will recall who that was.

As I understand the logic of the common or customary law, a person who refuses to participate in the justice system by answering summons or heeding judgments puts herself outside the law, which is the meaning of "outlaw"—hence depriving herself of its protection. Anyone encountering such a person is free to treat her with impunity as a wild animal. This is a dangerous situation to be in, and usually it meant self-exile. This is drastic "punishment," and might in some cases seem disproportionate to the crime the "outlaw" was charged with. The "outlaw" status, however, is not for that original misbehavior, which may never even have been adjudicated, but for having repudiated the customary law process which is a cornerstone of social life.

Under customary law, enforcement of a judgment normally is the responsibility not of the court but of the plaintiff or her kin, who can use force to the extent necessary (not "excessive") under the sanction of the court. A prison/refuge enterprise might include among the services it offered the public, therefore, the capturing and holding of "outlaws" for plaintiffs under such conditions that they could earn and thus pay off outstanding judgments against them. Other "outlaws" might voluntarily seek refuge, contract appropriately and then be free on their own recognizance—no longer being "outlaw." The refuges would carry insurance, naturally, and would have to be careful and conservative in their actions lest their premiums soar out of sight. Thus, theoretically, the use of force by prison enterprises could not be ruled out, but would be under scrutiny of both the court and the plaintiffs, their clients—who would not want to incur liabilities of their own.

The large picture might be one of prisons evolving into largely voluntary, rehabilitative "refuges" where their clients could gain protection and regain a lawful status in society through contracting as dependents of those operating the refuges. The refuges then would assume liability for their clients' conduct while they were dependents, and in some cases that might require agreed-upon restraint of the client as part of her contract. [There are some] interesting possibilities here. The client would work in the safe environment of the refuge for her keep and to accumulate resources to pay restitution owed, and so forth. The refuge would have incentive to provide education and training that would make the client more productive—etc. D

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