Anarchy, State, and Mixture, Part I:
Six Possibilities
by Roderick T. Long
(to
table of contents of archives)
The new libertarian nation toward which we work should have a constitutional structure that combines aspects of government with aspects of anarchy. There are two reasons for this. First, such a compromise is more likely to inspire libertarians of both minarchist and anarchist persuasions to collaborate in the establishment of the new nation. Second, as an anarchist myself, I am convinced that a free nation will need to be fairly anarchistic in order to remain free; but I also concede that such a nation will need to be able to show a governmental face to the world (as well as to some of its inhabitants, especially if the free nation starts off with an indigenous non-libertarian population) in order to maintain its legitimacy.
There are a number of different (not necessarily mutually exclusive) ways of combining governmental with anarchistic features in a single legal system. One suggestion I’ve made in the past is to have a federal structure in which the central authority was the government but in which the local jurisdictions were competing, non-territorially-based "virtual cantons." Another is to have the national government renounce all governmental power but still use governmental language, and make paying taxes a condition of citizenship. Still another is to have an inner region of anarchy protected by a surrounding buffer zone of government. Which of these methods, if any, is most appropriate to the new nation will depend on the particular circumstances of its formation.
I now wish to suggest yet another way in which aspects of both state and anarchy can be combined into a single system.
A legal system is any institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way. A government is a legal system that claims, and in large part achieves, a coercive monopoly on the use of force to adjudicate claims and secure compliance in a given territorial area. So government is, in effect, a monopolistic legal system. But a legal system has three main functions:
The purpose of the legislative function is to determine the rules that will govern the process of adjudication. Legislation tells the judicial function how to adjudicate. The legislative process may be distinct from the judicial process, as when the Congress passes laws and the Supreme Court then applies them; or the two processes may coincide, as when a common-law body of legislation arises through a series of judicial precedents.
Finally, the purpose of the executive
function
is to ensure, first, that the disputing parties submit to adjudication
in the first place, and second, that they actually comply with the settlement
eventually reached through the judicial process. In its executive function
the legal system may rely on coercive force, voluntary social sanctions,
or some combination of the two. The executive function gives a legal system
its ‘teeth,’ providing incentives for peaceful behavior; both domestic
law enforcement and national defense fall under the executive function."
There are six possible intermediate combinations:
A. legislative monopoly
judicial
monopoly
executive
competition
B. legislative monopoly
judicial
competition
executive
monopoly
C. legislative competition
judicial
monopoly
executive
monopoly
D. legislative monopoly
judicial
competition
executive
competition
E. legislative competition
judicial monopoly
executive competition
F. legislative competition
judicial competition
executive monopoly
Of these six possibilities, A and D are the most frequent historically. But each is a possibility. In future installments I shall consider the potential benefits and drawbacks of each. D
To be continued
Roderick T. Long is Assistant Professor of Philosophy at Auburn University. He has been a small-L libertarian since 1979, a big-L Libertarian since 1987, and an anarcho-capitalist since 1991. (What took him so long?) He can be contacted at <longrob@auburn.edu>, and his webpage is <www.geocities.com/BerserkRL>.