Anarchism and Kavanaugh

Regarding Brett Kavanaugh, I’ve been wondering how I can blame the state for what we’ve endured these past weeks. I can safely say that without the state, we would have been spared the Kavanaugh episode.

Natural-law, pro-market anarchists are not utopians. To paraphrase the old hit: we beg your pardon; we never promised you a rose garden. Anarchism refers to a set of means — persuasion, consent, and voluntary cooperation — and not an end. It permits the emergence of solutions through a range of cooperative activities as opposed to the state’s imposition of one-size-fits-all alleged solutions from on high — from, say, Capitol Hill, our Mount Olympus.

But some things are less likely to occur in a stateless society than in a state-saturated one. And the Kavanaugh problem is one of those things.

Let’s start with the basics. Kavanaugh has been nominated for a seat on the U.S. Supreme Court. Supreme Court justices have lifetime jobs. While an impeachment process exists, it is close to impossible to remove a high official. Second, the Court’s rulings are the “supreme law of the land.” It takes just five of nine justices to set binding precedents, which lower federal and state courts obviously must apply. Third, parties who elect to take cases to the Court are stuck with whoever happens to be on the Court at the time. If a party has doubts about the character of one or more of the justices, tough luck. (This doesn’t mean the government’s courts are unavoidable for some people, as the popularity of private arbitration demonstrates.)

In light of these facts, I can’t think how a situation like the one created by Kavanaugh’s nomination could arise in a stateless society. No supreme court would exist because no monopoly legal system would exist. (See my “Of Bumblebees and Competitive Courts.”) Judges would not have guaranteed lifetime jobs. Nor would their rulings serve as binding (as opposed to persuasive) precedents. (On the emergence and downside of stare decisis, the doctrine of binding precedent, in the common law, see Todd Zywicki’s “The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis.”)  Parties to disputes would, through mutually agreed-to procedures, choose anyone they wanted to hear their cases. This could happen ad hoc in one-off disputes, but the more common practice would likely be prospective arrangements among associations of various kinds, insurance, defense, and so on.

As I say, it’s hard to imagine how the Kavanaugh situation could arise under anarchism. Parties looking for members of an arbitration panel usually could strike from consideration anyone about whom they had any doubts whatever. Other parties who had no concern about someone under a cloud like Kavanaugh’s could choose that person, subject to the conditions agreed to with fellow disputants. But, crucially, the choice to include or exclude such a person would have implications for only the parties to the specific dispute.

Obviously, prospective arbiters’ reputations, especially for fairness and honesty but not only those traits, would matter immensely. In effect, prospective arbiters would face a confirmation review — by disputants or their representatives — every day. A Supreme Court nominee does so just once. If the Senate errs, too bad. As mentioned, under the Constitution, justices “shall hold their offices during good behavior.” But in 229 years, Congress has never removed a justice. Only one, Samuel Chase in 1804, was impeached by the House, but he was acquitted by the Senate. in the 20th century, William O. Douglas and Abe Fortas escaped House impeachment votes, though hearings were either held (twice in Douglas’s case) or almost held (Fortas). Under anarchism, no impeachment process would be necessary because no one would be appointed to any judicial role except by parties to their own particular cases or by the associations or communities with which they chose to affiliate.

So a big advantage to anarchism is that it would blessedly spare us from the sort of repulsive spectacle we’ve lived through these last weeks — repulsive in an assortment of ways. I’m thinking now of that band of self-righteous frauds called senators and that amoral boor with the “really, really large brain” who imagine themselves to be guardians of the people’s welfare when in truth they are impediments to it. Imagine a society in which, for most of us, nothing much hinged on whether Brett Kavanaugh or Christine Blasey Ford is telling the truth.

Anarchism’s looking pretty good now, isn’t it? I know that some people are frightened by that word, but they ought not to be. Rather, they ought to think of anarchism as Roderick Long presents it in his critical look at the recent exchange over anarchism that took place at Reason. Long tells us that anarchism amounts to little more than an expansion to all areas of life of the manner in which we typically deal with one another today, thereby shrinking the sphere of coercive relationships until it disappears. He draws on earlier thinkers to make the point:

Recall Gustav Landauer’s famous formulation: “The state is a condition, a certain relationship between human beings, a mode of behavior; we destroy it by contracting other relationships, by behaving differently toward one another.” And another anarchist, Paul Goodman, has noted: “A free society cannot be the substitution of a ‘new order’ for the old order; it is the extension of spheres of free action until they make up most of social life.”

So, just imagine a world where you could ignore, among many others I could name, Lindsey Graham, Jeff Flake, Dianne Feinstein, and Donald Trump. To quote Louis Armstrong, “What a wonderful world it would be.”

(For discussions of law under anarchism, see Roderick Long’s essays “Why Objective Law Requires Anarchy,” “Libertarian Anarchism: Responses to Ten Objections,” and “Market Anarchism as Constitutionalism”; John Hasnas’s “The Myth of the Rule of Law,” “The Depoliticization of Law,” “Toward a Theory of Empirical Natural Rights,” and “The Obviousness of Anarchism”; and David D. Friedman’s “A Positive Account of Rights.” Also see the chapter “The Constitution of Anarchy” in my America’s Counter-Revolution: The Constitution Revisited. and Gary Chartier’s Anarchy and Legal Order.)

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Responsible Rulers

I have often heard people charge libertarian anarchists with being irresponsible for wishing to get rid of the current system of government and replace it with genuine self-governance. It’s as if — however difficult it may be to believe — these critics actually believe that rulers in the current setup are responsible. Responsible! These rulers, however, preside over domestic murder and foreign mass murder that never ends; they plunder the society of its private wealth in countless ways and in amounts that the mind can scarcely grasp; they bully and oppress everyone outside the ruling precincts in thousands of distinct ways. Yet these rulers are presumed to act responsibly! In the name of God, what are these deaf and dumb critics of libertarian anarchism thinking?

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Who Is Your Black Flag Freeing? The Futility of Flags and Labels

One of my favorite things about my company is the diversity of opinion. We have liberals. We have conservatives. We have the non-political and the activists. We also have more than our fair share of people who think we’d be better off with no politics or state at all. I’m one of them.

I can easily tell some of my anarchist coworkers by the black flags on their desks. I inherited one of these black flags from a former developer, and I treat it with reverence. I do go back and forth, though, on whether it should be on my workstation.

As far as I see it, what I mean to signal with that black flag is that I don’t believe in violent power or rulers. What I believe is that people ought to be free to live their lives without coercion from others, with consent in all their interactions.

That’s a good thing. But there are still a few problems with having a flag (or a bumper sticker, or a yard sign, or any kind of public ideological self-label):

  1. Who cares what I think? 
  2. Flags don’t carry positive messages nearly as well as I think. 
  3. Flags have a lot of baggage. 
  4. Flags are a trap.
  5. Flags free no one. 

Having that flag there solves none of those problems.

1. Who cares what I think? It’s just a bit arrogant of me to think that anyone wants to have my politics shoved in their face whenever they visit my desk.

2. Flags don’t carry positive messages nearly as well as I think. When has anyone ever seen a black flag and thought “you know what, I do believe that government isn’t necessary anymore!” Flags communicate labels, not ideas. My black flag might suggest I “am” an anarchist. It doesn’t convey what anarchism means or why it has value.

3. Flags have a lot baggage. Flags, like labels, mean different things to different people. If someone has the concept of anarchism as destruction/chaos/violence/communism/etc, my black flag is only going to drive them away from me and from the concept of anarchism as peace/freedom/equality of authority/mutual respect/etc.

4. Flags are a stumbling block. When you flash around the symbol of an ideal you become responsible for fulfilling that ideal. If you don’t fulfill the ideal, you discredit the ideal at best or become a hypocrite at worst. When I’m waving my flag, someone is getting their concept of what “anarchism” and “anarchists” are like from me and my comments and demeanor. I’d rather they judge the ideas rather than me as a representative.

5. Flags free no one. Waving my black flag around may rah-rah the fellow liberty lovers around me (and make me feel virtuous), but it doesn’t convince anyone to give up on power. It also doesn’t liberate anyone from the grip of the powerful. It’s a poor substitute for action.

All of the above apply to any other belief: you bring little value to the world with your bumper sticker, your yard sign, or your flag. In fact, you may hurt your own cause.

I don’t see too many benefits to the label of anarchist or to a black flag proclaiming my anarchist bent. I see plenty of benefit to acting – in work and out of it – to bring more freedom to people, bit by bit.

So I think I’ll be putting the black flag back in its (honored) storage place.

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In Spite of Threats

The idea that anarchism must fail because under anarchy no one can make others obey the rules is stunningly stupid. On any given day, even in a world pervaded by states and their dictates, nearly everything that people do or refrain from doing is so not because the state threatens them with violence for acting otherwise, but because they find conformity with rules — honesty, promise keeping, careful handling of goods, avoidance of opportunism, and so forth — to be in their interest. The world does not run on the state’s threats of violence; it runs in spite of those threats.

Many sanctions besides violence and threats of violence may be — and are even in the world in which we now live — effective sanctions for adherence to law and order. Ostracization of dishonest dealers, for example, works wonders, and in the world of modern communications it can be more effective than ever.

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In Defense of Objective Morality

There are those who discredit the philosophy of objective morality, their reason being that we, by virtue of our disparate life experiences, fail to derive a homogenous concept of morality, rather a more subjective take on morality.

Over the last year I’ve come to defend the legitimacy of objective morality based on the concept of natural law among other philosophies. That is, if a benevolent action is acceptable to be performed by a group, it should hold true that the action would be seen as acceptable for the individual as well.

Conversely, if a malevolent action (as defined as a contradiction to natural law) is not acceptable to be performed by an individual, then a group performing malevolent acts shouldn’t be acceptable either.

If one looks at the world today, how many malevolent acts are being perpetrated by groups of people? Why are they being sanctioned, accepted, and even celebrated when these actions are immoral based solely on the violation of natural law?

All this is not to say that natural laws and man made laws are always in opposition. If I could whip up a Venn diagram I could show several overlapping laws covered by both ideologies. Murder, theft, rape, assault… any action which results in a victim pretty much covers it.

It’s the victimless “crimes” that fall under the purview of man made laws that concern me. These laws are the constructs of men and women with no regard to objective morality or natural law. Laws borne of a lust for power and control, not of a spirit of empathy and equity.

Without the understanding of natural law and objective morality one can become tacitly complicit in the illegitimacy of man made laws and possibly suffer the dire consequences themselves.

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How to Compromise on the Government Question

The libertarian philosophy posits absolute liberty among consenting individuals. Don’t want the government? You shouldn’t be forced to pay for it or live by its rules. Want the government? You should voluntarily pay for it and voluntarily live by its rules.

But, per the libertarian philosophy, where governments exist they must be voluntary, via fully informed consent.

A radical libertarian believes voluntary association is required in a free society. A pragmatist libertarian believes the philosophy should evolve to include not only non-libertarians, but anti-libertarians.

So how does a libertarian who’s engaged in politics go about political discourse? The bait-and-switch scheme and willful ignorance are in opposition to libertarianism. Libertarian candidates can make the case for voluntary government, but also make the case for voluntary secession from said government.

Policy? It’s easy. The government itself can be a public option. In the face of competition, people can opt for private sector or, via a case-by-case basis, opt for a government service, through user fees.

That’s compromise. Without compromising libertarian principles. Gary Johnson, Bill Weld, Bob Barr, Wayne Allyn Root, Alicia Mattson, Tim Hagan, Larry Sharpe, Alicia Dearn, etc. are examples of pragmatists who seek to make libertarianism indistinguishable from liberals and conservatives.

That’s not to say all radical libertarians are rational, but even the irrational ones understand the philosophy. Want positive change? In the words of Carla Howell: be bold.

You can call for the abolition of mandatory payment (theft) for government education and offensive military without the baggage of “anarchism.” It’s called strategy, without the dishonesty.

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