The Voluntaryist Constitution, an Oxymoron?

Trey Goff had an interesting article published at outlining what he is calling a “voluntaryist constitution.” Can such a thing even exist? I don’t believe it could exist as anything more than an ideological creed. To expect it to be adopted and enforced by a central political authority is to expect the impossible. Any central political authority would itself be a violation of voluntaryist principles.

In Goff’s defense, he does write that, “[the] document is completely agnostic as to what institutional structure of governance will occur under its jurisdiction. Although I am hopeful that this constitution will be utilized in a polycentric common law legal order a la Rothbard and Barnett, I have intentionally left the document open to be useful for any governance structure that may wish to adopt it. Only competition between governance structures can lead to the discovery of the most efficient, judicious, and efficacious governance institutions.”

Good and well, I suppose.

I thought it’d be fun to scrutinize the so-called voluntaryist constitution from my particular voluntaryist perspective. I won’t comment on every part, just those I find worthy, with added emphasis in the original. Here goes!

The preamble:

This Constitution is hereby ordained as the preeminent contract outlining the fundamental legal principles and foundational legal framework of a truly free society. This document is meant to ensure that the right to property, being the most powerful of all encouragements to the multiplication of wealth, shall absolutely not be abridged, and further, that the right to self-ownership, being inherent in the existence of human, shall likewise be respected. This document further aims to ensure the creation of a peaceful and harmonious society predicated on voluntary cooperation such that the tranquility, prosperity, and happiness of all can be ensured. This Constitution is only applicable to those who have explicitly, voluntarily, and of their own free will and accord signed it, as well as their children, guests, and visitors. This is a free society where coercion is absolutely prohibited, meaning that no individual, group of individuals, and no entity including any state, government, organization or group of people in general, under any circumstances whatsoever may exercise or invoke any rights other than common property rights specifically stipulated herein.

Not a big fan of the “contract” language. I am a big fan of enforceable and explicit contract practices, but this is not a contract with anybody specific, which tells me this has a “social contract” aire about it, which is unfortunate for the simple reason that it dilutes the meaning of the term “contract” to an abstraction.

I’m also not a fan of phrases like “the right to property” and “the right to self-ownership, being inherent in the existence of human.” I don’t believe these things exist. Rights are internally a mental construct and externally a social construct. Which property norms will develop and evolve is a matter of spontaneous order, not social contracts. I have doubts that any two free societies will look exactly alike on the property norms that develop and evolve over time. Some may grant children greater self-ownership rights than others, for example. Others may place heavier social burdens on absenteeism than others.

Article I, Def. 2:

Def 2. A previously unowned or abandoned scarce resource is one meeting all the criteria of Def. 1 that is not being actively utilized by an individual or group of individuals for the completion of a particular project, or has not been claimed to be owned, in the time scale of human action, and in compliance with adverse possession common law.

I very much dislike the ambiguity here on an abandoned scarce resource “not being actively utilized” in “the time scale of human action…” Again, this should be a matter of property norms by spontaneous order, on what constitutes “abandoned” property, available for re-appropriation. Maybe that’s what he meant.

Article I, Def. 4:

Def 4. A coercive act is any act involving the use of private property on which a cognizable property right already exists, without the free and voluntary consent of the legitimate owner.

This should be an “aggressive act” not “coercive act.” Why? Because I do not consider coercion to be confined to the physical realm. Blackmail is a form of coercion, but it is not aggression, and therefore not a violation of the libertarian non-aggression principle. But as an act of coercion, it is a violation of the voluntary principle. As are certain uses of social ostracism and shaming. Althought I consider these ideas less than satisfactorily developed, I have written on “social coercion” here. Another discussion by two friends can be found here.

Article I, Def. 5:

Def. 5. Homesteading is the process by which human beings justly acquire property rights in a previously unowned or abandoned scarce resource by mixing one’s labor with the resource.

Ugh. “Mixing labor” should not be the qualifier on homesteading scarce resources. Rather “appropriation” should be. What’s the difference? The “mixing labor” metaphor leads us down two mistaken paths: labor theory of value and intellectual property rights. I know the previous definitions try really hard to focus “property” in the concrete, versus the abstract, but it’s unnecessary to even use this metaphor. Wrote Stephan Kinsella, “Homesteading still results in property because a homesteader, by being the first to emborder or transform some unowned resource established a better claim to that resource than any latecomer.” (Emphasis added.) “Mixing labor” is putting things into the weeds where they need not go, and is itself a dangerous place to be.

Article II, Point 5 (et al):

Every individual shall have the right to freedom of contract, meaning that a rightsholder’s consent is both necessary and sufficient to transfer alienable title to property.

Even children, I ask? I can’t find anywhere in this entire constitution the defining of what constitutes an individual in points like this. Maybe that’s as designed. I think the norm on “age of consent” should develop and evolve as a matter of spontaneous order, and will no doubt differ from free society to free society. That’s how it should be, but I found this omission peculiar where other norms, like property rights, are made explicit.

Article III, Point 3:

Only legitimate property as defined in this Constitution and in accordance with all provisions of this Constitution may be the subject of a title transfer.

Gack! Major fail, as I’ve already explained above about property norms by spontaneous order.

Article IV, Point 2:

Jury trials are to be utilized in all criminal proceedings or any legal proceedings wherein an arbiter and arbitration method were not specifically stipulated contractually by all relevant parties beforehand.

The constitution fails to define “jury trials” and so it’s easy to assume common usage, which unfortunately includes conscription, which is “outlawed” by this constitution. I suppose that means these must be voluntary juries (ahh, yes, there it is in Point 5). I like that, and I like the idea of a paid professional juror market. But I don’t like the finality to this requirement. Many of these points suffer from that. Again, these should be a matter of norms and conventions developed through spontaneous order.

Article IV, Point 4:

No person shall be tried more than once for the same crime.

I don’t care for the doctrine of double jeopardy. If new evidence is brought to light, you can be damn sure I believe it should be used against an offender. Prosecutors will do their best collecting evidence, but these things have limitations. My comment here should not be construed as a belief that double jeopardy should not be a legal principle in our statist context. Anything to keep the state from profiting off of crimes is okay in my book.

Article IV, Point 8:

Restitutive compensation may be obtained coercively if necessary.

My mind’s not yet made up on this. I assume here they mean “aggressively,” which is the part I’m still unsure of. If we’re talking threats of social ostracism and shame (types of social coercion), then I’m okay with that. I think those threats are justified. Would aggression, or rather, violence, be justified in obtaining restitution from a convicted offender? I’ll leave it up to convention, for now.

Article IV, throughout:

under the purview of this Constitution” “parties to this Constitution” “This Constitution ratifies and adopts

This is real contract language put in this not-real contract. That’s stupid, in my opinion, because all it takes is a disassociation of this “constitution” to exempt oneself of its rules. What’s the point, then?

Article V, Point 10:

Any attempt to establish a monopoly on coercion and force within the jurisdiction of this Constitution.

Oops! “this Constitution” implies the singular, as does “monopoly.” Oxymoron? Yes, if it were actually a binding contract, which it’s not. So again, what’s the point?

Like I said, all good and well if this so-called voluntaryist constitution is meant as an ideological creed. I can agree with most of it, on those grounds, and would hope governance structures that I personally adopt and adhere to would recognize it. Perhaps there are some points I would change in Article V, maybe some practices I would like to see prohibited that are not violations of the non-aggression principle, such as how we educate and discipline our children. Maybe I missed some other things throughout to find objectionable.

In any event, it was a fun exercise to go through it and point out the parts I had issue with.

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A Conversation Between Voluntaryists: What’s with IP?

Kenny Kelly’s Introduction: Kilgore and I have had another discussion. This time about intellectual property (IP) laws and their role, if any, in a free society. This topic is not as much of a debate as the last, but still worth having.

Kilgore Forelle’s Introduction: Kenny and I got together, again — this time to discuss the thing inadequately labeled as “intellectual property.”

As H. L. Mencken once wrote, ” … there is always a well-known solution to every human problem — neat, plausible, and wrong.” He must have been addressing the statist response to ‘IP,’ copyright, and patent.

Kenny: Thesis: Intellectual property (IP) is defined by Merriam-Webster as that which “derives from the work of the mind or intellect; also : an application, right, or registration relating to this.” In other words, IP is intangible property that an individual has yet to mix labor with something physical to make an actual thing. “Property rights,” as understood by libertarians, are claims to ownership of tangible objects. Not ideas.

Kilgore: Kenny, it looks as though we are going to agree, but perhaps for different reasons — not that the reasons are incompatible.

I take the very empirical view that an object has to occupy a distinct locus on a space-time continuum. I would state it this way — ideas do not occupy space and cannot be a thing until they do. An object is a person, place, thing, or event.

Although an idea could be called a thing, it is an abstract thing until it is connected with something concrete. Often the concrete association is achieved by monetization.

If you can get someone to pay you for the right to use your idea then it has taken its place among the set of things that occupy unique addresses in time and space.

For example, the Beatles had an idea that became “Back in the USSR.” It is ironic that Paul decided to borrow ideas from Chuck Berry (Back in the USA) and the Beach Boys (California Girls), but to craft these into a third, unique product. So, who owns this musical gem? It is the belonging to an association that makes it an owned combination of things, a thing itself. It is owned by Chuck Berry, one or more of the Beach Boys, Paul McCartney, John Lennon, the Studio, the minions, the recording company, the crafters of the Beatles’ instruments and equipment, and anybody who bought an instance of the song (ie. a track on the “White Album”). The free market took care of those single relationships that needed more defining.

Kenny: Yeah not incompatible, because I agree. I guess the question is: do you believe IP should be abolished or reduced?

Kilgore: I believe that IP cannot be codified by the fictions of legislation or regulation.

As we see from the Beatles example, relationships are 1-to-1 but can become very complex. We cannot devise a one-size-fits-all model. The voluntary, individualist market arrangements that arise naturally for the least complex part will suffice to self-govern that part. Complexity only accumulates one relationship at a time. Each relationship has simple self-governance, or else it is a complex relationship where all objects do not have natural, balanced participation.

I don’t intuit that we need IP. An idea that is just a thought exists only within 1 person. It is not shared. Until it is shared, the question of ownership does not arise. When the first question of ownership arises, it is within a 1-to-1 relationship, therefore voluntary agreement can take place, without compulsion. Added relationships may bring complexity, but if each relationship is voluntary 1-to-1 the complex will be simple in principle. Any addition of un-agreed rules adds complexity, necessarily. It does not simplify the complex, rather it confounds.

Kenny: I agree. I mean, ideas are finite and are not subject to “stealing.”

Kilgore: Ok, so where does this leave us now? I think we are both opposed to locking down the access to an idea. But don’t we also respect the person who has committed his idea to a form that can be transferred. Do we, as free marketers, tell anyone that they cannot offer an artifact for sale on the open market? Isn’t that free marketer also entitled to say, “Pass on by if you do not value my product enough to pay an agreed upon price for it. The seller can only create a small monopoly within the bounds of his marketed goods.

Where I have a problem is when middle men become involved, to create an artificial scarcity where one would not naturally exist.

Here’s an example. As a software engineer, I specialized in usability. But an overwhelming part of the research literature was hidden from the public, because it was being held hostage by the two largest research organizations for the purpose of selling annual dues agreements. I was a student at the University of Kentucky (UK), and as such, I could tap both of these sources by going in person to the Engineering School Library. I could not access them at my own school where I worked because the Library at Kentucky State University (KSU) would not pay the steep institutional price. I personally felt that the price for an individual membership was astronomical (probably done to maintain the lucrative major institution gravy train).

The upshot was that I was not a subscriber to either source of material.

I am struggling with isolating the principles that are involved here.

Kenny: The “monopoly” isn’t the issue. The issue is how that monopoly is formed. If it’s from a producer, that’s okay. If from the government by force, then not so much.

Kilgore: How do you address the example I gave?

Kenny: As long as the organizations didn’t have government protection then it’s a free market thing. If they did, then it’s an artificial monopoly that ought be ended.

Kilgore: Weren’t the teeth behind their withholding of ideas supplied by governments’ willingness to enforce copyright laws?

Kenny: In this case, I don’t know. If so, then it’s an artificial monopoly. If not, it’s the free market.

Kilgore: I think the question is: if there were no government threat of violence would copyright and patent be implementable? A following question is: would civilization disintegrate?

Kenny: No and no. People would have to learn to be more strategic with their work.

Kilgore: So what I’m hearing is that people who learn would become more strategic. It is like the market itself — it changes to fit the situation. If copyright and patent are not there as artificial protections, then creative people will arrive at creative solutions to derive value from their labor.

It sounds as if it could be self-organizing, without threat of government enforcement.

In a voluntaryist society people would either make person-to-person agreements to exchange money, goods, or services for creative artifacts, or the creator who wanted to sell to mass consumers would have to accept the risks of putting a copyable format out there in the big world.

Kenny: Exactly. Rothbard talked about how IP can be protected without government. Rothbard wrote a lot of articles about it. This is one that’s easier to read.

Kilgore: That’s an excellent reference, Kenny, wherein Rothbard emphasizes the organic nature of property holding in an open market with polycentric law. If the property exists concretely it can only change ownership through voluntary transaction or theft. The most basic, natural laws against theft will suffice.

Apart from that, a second market principle applies. A creator must consider comparative advantage when deciding how to protect his own interests. Is it more effective to pursue the casual copier/downloader or the for-profit pirate? Is it more rational to pursue the pirate in the bigger market or the smaller? Does one get more bang from chasing the pirate in the market at hand or in the distant one.

Someone once told me that he was advised to protect all frontiers of copyright or risk being deemed to have waived the copyright. Is this a thing? If so, wouldn’t it make far more sense to rely on common law relating to theft?

Kenny: I don’t know, IP laws are based on coercion. That’s why in today’s market if I record or publish anything I’d put it in public domain so no one can claim ownership of it.

Kilgore: Public domain it is. Anything I do is in the public domain. The fictional legislative interventions bring on a market response — it is too costly in terms of time, effort, and hassle to use copyright procedures.

If I suffer insupportable damages, ie. a real crime has been done, then I can avail myself (having awaited an actual event) of ancient common law, natural law and ethics as they apply. This is an instance of observing Ockham’s Razor.

Kenny: In conclusion, IP laws would be unnecessary in a free market. If you take pride in your work it would be prudent to be patient and form a business strategy. IP laws seem to be supported by impatient people or those who lack business savvy, from the average Joe to corporatists.

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The Law According to the Somalis

Written by Davi Barker.

Many voluntaryists have looked longingly toward Somalia for evidence of our ideas in practice. But it’s a little tough when that real-world example also happens to be the quintessential image of extreme poverty and feuding warlords for most people.

Nonetheless, sometimes an article appears that rightly points out that comparing Somalia to developed nations is a little intellectually dishonest. In fact, Somalia has improved by virtually every measure of standard of living without a state, or when compared to its neighbors that still have a state.

Even the BBC grudgingly admitted that 20 Years of Anarchy had spurred economic growth, especially in the telecommunications sector.

Michael van Notten’s book The Law of the Somalis describes Somalia’s stateless legal tradition, which he calls “kritarchy.”[1] As Africa explodes into populist movements demanding Western-style democracy, I’d like to argue, as van Notten did, that a superior indigenous alternative is nestled right in their backyard.

Somalia is not stateless by accident, as is the conventional view. The Somali people consciously rejected democracy and central government, and with good reason. Prior to the colonial period almost all African nations were polycentric tribal anarchies, which practiced a system of customary law.

The Somalis never accepted the legal systems of the colonial powers and largely ignored them or tried to nullify them by noncompliance, preferring always the social software of their own design. In 1991 the Republic of Somalia collapsed, but rather than electing a new leader, Somalis simply allowed their indigenous customary law to become the unopposed law of the land, which did not include any central government.

No discussion of Somalia can occur without addressing the political violence in and around the city of Mogadishu. So why Mogadishu? Well, that’s where the defunct politicians of the old republic, now known as “warlords,” are attempting to reestablish a central government in the old capital.

The United States and the United Nations believe that a central government is necessary to bring Somalia into, “the family of democratic nations,” and they have spent billions of dollars on state-building efforts, which only perpetuate the violence. Essentially, there is a huge pool of free money for whichever warlord can convincingly claim to be the central government of Somalia, but the people persistently resist all such claims. So warlords must use brute force, against both the people and each other, if they want the slush fund. Were it not for this there would be little incentive for civil war.

Van Notten speculates that the reason the US and UN do this is ideological, and fundamentally rooted in their fear that if Somalia were allowed to succeed, its system of stateless law could be viewed as a viable alternative to democracy and be spread elsewhere.

Why are the Somali people consistently unimpressed with Western political systems?

To answer that, we’ve got to define four sources of law that Van Notten identifies in the book: natural law, contract law, statutory law, and customary law. Natural law is the voluntary primordial order of all human societies, which coevolved with human nature. It is the invisible hand behind the entire human ecosystem. Natural law can be discovered and described, but it cannot be amended by human ambitions. A natural right is one that can be universalized to all human beings and exercised without permission and without infringing on the rights of others — namely, these are the rights to life, liberty, and property. Put simply, don’t hurt people and don’t take their stuff.

Contract law simply means to keep your agreements. A contract is valid when it is voluntarily entered and does not violate the rights of any third party.

Statutory laws are rules written by rulers and enforced through threats of violence, usually by a standing police force.

Customary law may be an unfamiliar concept, but once you learn to see it, you’ll see it everywhere. Like natural law, it emerges spontaneously from people’s voluntary interactions. Think of it like this: the laws of chemistry or physics are eternal, but the sciences of those disciplines are constantly evolving. Such is the relationship of natural law to customary law. Natural law is eternal, while customary law is the discipline of refining our understanding of it.

Natural law can only be pursued in ways consistent with itself, just as inconsistency disproves a law in science. In that sense, fraudulent contracts, barbaric customs, and oppressive statutes cannot be rightfully regarded as laws at all, just rules.

The Somalis are not ignorant of these concepts. In fact, life, liberty, property, and the four divisions of law all have words in their language that were not borrowed from other languages, indicating that these concepts are as indigenous to them as they are to English speakers. It was no historical accident that they developed a voluntary legal structure. Almost every Somali child is thoroughly educated in the customary law by the age of seven. Even an illiterate nomad understands life, liberty, and property, and regards himself as subject to no authority except God.

The Somali people strongly reject statutory systems like democracy because they render everyone subservient to political officials. They oppose dividing society into the rulers and the ruled. Democracy is often presented as “government by consent,” but in any statutory regime, someone claims the authority to rule over those who don’t consent. The inability to opt out by nonparticipation or secession renders the whole concept of consent meaningless. There can be no natural right to elect a “representative” to do what you have no natural right to do yourself.

Further, the idea that rulers could write new laws would strike the Somali people as obscene, because in their view the law is preexistent.

They cherish natural rights like the right to self defense by private arms, to practice law, to travel, to freely contract, to educate children, and to trade in open markets; in statutory systems all of these are reduced to privileges requiring licenses. In natural law, one is free to engage in all of these activities without asking permission, and every license is an infringement on that right. In order to protect natural rights, statutory law must first violate natural rights; whereas customary law is designed to protect natural rights in ways that approximate natural law. In this sense, statutory democracy itself is incompatible with natural law.

So what is kritarchy? How does Somali customary law work?

The term “kritarchy” comes from the Greek terms kritès (judge) and archè (principle) and describes a social order where justice is the ruling principle. It’s tempting to think of it as “rule by judges,” but that’s not really accurate. In a kritarchy, judges have no special powers and only hold their position by the consent of others. And there are no rules prohibiting anyone from serving as a judge. Disputing parties may choose anyone who has a good reputation, and it often happens that a clan has many judges. But a Somali judge only enforces the customary law, which is natural law as he understands it.

Traditional Somali society is decentralized, similar to the Internet. There is no executive or legislature. There is only a set of familiar protocols shared by a network of independent individuals organized into clans.

Now, you might think that a clan must have a chief who is the final arbiter in all matters. This is simply not the case. In fact most Somali clans have origin stories about a distant past when their elders appointed a clan chief, but he was so oppressive or incompetent that they abolished the position and agreed never to appoint another.

Individuals are in no way obligated to their clan. Dissenters are never forced to participate in any clan activity, and individuals are free to leave their clan and either join another or form their own. There is no coercive hierarchy within the clan. Antisocial behavior only leads to social ostracism. If force must be used, it is never to destroy persons or property but only to halt aggression.

The legal apparatus only comes into effect when there has been a violation of rights, as in personal injury or damage to property. All justice is restorative, not punitive. So if there is no victim there is no crime. Somali law requires only that victims be compensated for violations of their life, liberty, and property.

A law court is formed when a conflict requires a third party to resolve it. If the disputants are from the same clan they may go to the same judge, but if they are from different clans judges from each family form a law court together. Judges are tasked with investigating the conflict and discovering a resolution that most satisfies the reason and conscience of both parties, not with rendering a verdict consistent with the precedents of other courts.

If the defendant is found to be at fault, compensation is owed to the victim for the damage caused. Somalis view humiliating or punishing a wrongdoer as a waste of time and resources, except that an additional fine may be awarded to the victim if the violation was intentional. The task of deterrence or rehabilitation is left to the clan of the wrongdoer, because they are ultimately liable for him.

So in the case of injury, the wrongdoer may be obliged to provide medical care as the victim recovers. In the case of theft, the stolen property must be returned and the victim compensated for their trouble. In the case of property damage, the property must be repaired or replaced. Although it is rare, in the case of homicide a murderer may be executed, but more often the bereaved family will agree to compensation, which is called the “blood price.” It is always up to the victim, not the judge, to decide to what extent to enforce the verdict.

All cases are widely discussed in the community, and if there is a consensus that the judge is not performing to the people’s satisfaction he may lose the confidence of his clan, and he will likely not be asked to settle future conflicts. In this way, judges are always subject to open competition.

Should enforcement be necessary within one clan, the court may request that able-bodied men in the community volunteer as a temporary police force, but there are no standing police. They may only use the minimum force necessary to right what was wronged. However, if the conflict was between multiple clans, one clan has no power to enforce its verdict on another. Penalties can be imposed for refusing to comply with a verdict, but clans are expected to police their own, and there are mechanisms in place to incentivize this.

Every clan maintains a communal fund that members voluntarily contribute to. This fund operates as a kind of social insurance for every Somali against liability. It can be used both to provide welfare for clan members who fall on hard times and as venture capital for businessmen to borrow and invest. If a person owes restitution that they cannot afford to pay, they must approach their clan to have their liability covered by this insurance fund.

This can be painfully embarrassing, and it gives the clan an opportunity to chastise the person, but it also insures that victims can always be made whole. In the case of conflict between multiple clans, this allows the clan of the victim to seek restitution from the insurance fund of the clan of the wrongdoer, which incentivizes clans to police their own. If habitual violators of the law become a drain on the clan’s insurance fund they may have their membership terminated, making them an outlaw with no protection from any court.

In principle, this description of the kritarchy in Somalia will seem very familiar to any student of natural law. However, in practice some of the customs which have evolved are so unique to their cultural and historical context that they seem utterly foreign.

Some customs are also stifling to economic development, which may explain why growth has been slower than we might predict in a stateless society. For example, customary law has been very reluctant to extend property rights to land. Instead land is owned by the clan, and an elaborate system of land-use customs have developed. This makes a kind of sense for a nomadic pastoral society, but for the development of modern infrastructure, land ownership is key.

In addition, foreigners have no protection in the Somali legal system (unless they are accepted by a host clan), and they are completely prohibited from owning land. The logic behind this is that they are not insured against liability the way clan members are; but discouraging foreign trade has stifled both economic growth and cultural cross-pollination.

Other customs are utterly barbaric by modern standards. Some clans use very primitive physical punishment for delinquent youth, as in tying them to a tree covered with honey and allowing them to be bitten by ants. The worst practices described in the book are those impacting women. In one case a verdict against a rapist obliged him to marry the woman he raped, the logic being that the damage he’d caused her was to spoil her marriageability. Some of these customs are so incredibly backward that they can only be understood with the detachment of an anthropologist, which van Notten provides.

Obviously, these customs have no place in natural law. It is incredibly important to understand that Somalia’s customary law is not being presented as a panacea, but that the elegant legal structure of kritarchy and its potential compatibility with natural law is a superior foundation for future development than is democracy.

To understand this point, imagine for a moment that customs like these were enshrined in the statutes of a democratic system. History shows us that social change precedes political change, and forcing the political apparatus to reflect social change is a slow process requiring mass movements, civil disobedience, and even civil war.

Customary law, on the other hand, evolves literally simultaneously with social change. It consists of the rules that judges discern from the normative behavior of living people. If social change occurs gradually, custom will change gradually; and if social change occurs suddenly, custom will change suddenly — because custom is changed by voluntary acceptance, not by democratic process.

Kritarchy can only exist in societies where the custom of seeking justice is stronger than the custom of achieving political goals through coercion. For democracy the opposite is true. For that reason, kritarchy is eminently suited to protect natural rights.

Kritarchy in Somalia challenges the conventional view that tribal societies had no concept of property and contract, because even without a central government Somalia has since time immemorial engaged in free trade, where prices are determined by market forces, and competition prevented the emergence of monopolies.

The Somalis have demonstrated that providing justice in the free market is at least possible, and that you don’t need to pass statutes prohibiting murder and theft, because those laws already exist, whether you write them down or not. In short, they have demonstrated that life, liberty, and property are inscribed upon the hearts of mankind, like fingerprints in the clay of Adam.

[1] Editor’s Note: Michael van Notten. The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Edited by Spencer Heath McCallum (Red Sea Press, 2005). The book was published before the international intervention of 2006, which propped up the Somali central government for a few years.

Originally published at

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Wage and Employment without the State

Anti-capitalists and anti-socialists make the same charge against each other: “your economic system wouldn’t exist without the state.” What do they base this charge on? Historic evidence of state capitalism and state socialism. All the popular charges against either economic system is rooted in the statist varieties, not the inherent economic qualities; given, neither system as we know them today has existed in a stateless society.

Private property, which is a whole different conversation, anti-socialists charge require the state to back up claims. The problem is the free market already backs up claims in many situations that are respected without a state – that’s why contracts exist. They argue capitalists wouldn’t be able to force workers and consumers otherwise.

No force is required if people voluntarily choose to work for or do business with a company. Just like no force is used if people voluntarily choose to start a co-op.

First, let’s address renting a place to dwell (may it be an apartment, house, or otherwise). Anti-capitalists argue without the state, capitalists wouldn’t be able to collect rent. In the premise where landlords fail to provide legitimacy to owning the dwelling in question, tenants would then have to pay for the expenses directly – such as water, electricity, and other services.

Not to mention maintenance on the dwelling itself. Of houses, the residents could easily hire people for those services. But in complexes, such as apartments, the plumbing system, wiring, etc. thereof would have to be owned collectively. The residents would have to come up with a system to: first, make decisions, and second, to maintain the building. But then, after this one step that residents of houses wouldn’t have to fool with, they still have to pay for the expenses.

Second, speaking of payments, let’s address wage labor. Karl Marx defined wages, in his pamphlet Wage Labour and Capital, as “the amount of money which the capitalist pays for a certain period of work or for a certain amount of work.” Capitalists understand and embrace this definition; furthermore, Marx acknowledges wage labor exists so the worker can earn a living.

Wage labor, or wage slavery as some anti-capitalists call it with glee, is the process where a capitalist hires a worker for his labor in exchange for compensation, usually monetary. The anti-capitalist argument is that a worker mixes his labor to finish the job he was hired to do and thus shares ownership in the final product. This argument forgets that without the capital (land, buildings, tools, wages themselves, etc.) the worker wouldn’t be able to labor.

The socialist belief is that without a state, workers would own their labor and what they produce. This belief is sound, but anti-capitalists assume this is mutually exclusive. In the economic system of capitalism, co-ops could be formed (and without government regulations, it would be a common, affordable choice), where workers would pool their resources and obtain the capital to do so. Since slavery is both illegal and immoral, they can’t force construction workers to build a building, or plumbers or electricians to give them power, etc. They would have to negotiate for such services with others. Managers, which are staples in capitalism, are more competent to negotiate.

But, given the laziness and known ignorance of some in society, that doesn’t mean every worker will want this much responsibility. Some workers just want the 9-to-5 grind where they go to work for eight hours a day, five days a week and labor on a schedule for a wage. If in a stateless society, workers choose this, would anti-capitalists use force to prevent this? If so, they’re not anarchists. If so, then it makes no sense they’re adamant about being against this.

This demand isn’t miniscule, so there’d be more than one employer. This alone is an effective check against an employer choosing to let workers work in bad conditions. Productive workers would receive better offers, either by his current employer or a competing one. Competition wouldn’t just help in working conditions, better wages, and such, but also prices and overall product or service quality.

Third, let’s address how corporations would exist. In Man, Economy, and State, Murray Rothbard states “Corporations are not at all monopolistic privileges; they are free associations of individuals pooling their capital.” Not unlike co-ops in form. However, what makes corporations under government coercive is the lack of rule of law. Limited liability, contractually-speaking, ought to apply only to those who signed the contract for corporatehood. Not anyone else. Corporations wouldn’t be that common anyway, given there’d be so many other, affordable options for people to choose.

Not for nothing, but there is the other side of the coin. Without a government – including state capitalism and state socialism – there wouldn’t be so many regulations preventing not just jobs growth, but entrepreneurship. David Friedman declared in The Machinery of Freedom, “instead of corporations there are large groups of entrepreneurs related by trade, not authority. Each sells not his time, but what his time produces.”

Starting a business, or even running one, requires knowledge in business administration (not just via education). The average worker doesn’t know to do either one. These workers would either be content with wage labor with an employer, or save compensation under wage labor with an employer to start their own business or learn management and climb the ladder. Throwing the average worker today into a society without employers would be akin to sending a typical video gamer naked into the wilderness to survive for a month. One has to learn to run a business, such as accounting, marketing, administration, pricing, distribution, etc., depending on the business.

Incorporating, much like wage labor, is a convenient way to utilize resources and labor. If a worker is unable or unwilling to work for himself, it would be beneficial to sell his labor power for a period of time in return for a wage from an employer. Without the government, it wouldn’t be coercive under duress.

Fourth, let’s address the capitalists’ claims and legitimacy. Anti-capitalists argue without a state, landlords, employers, and other capitalists wouldn’t be able to enforce their claims of private property. Violent anti-capitalists, under the guise of “self defense” argue they’d fight back if capitalists sent private defense agents to defend their property. Peaceful anti-capitalists either don’t know how they’d react or they’d go through the polycentric legal system.

Addressing the former is wasteful since violent people hold a metaphorical (sometimes literal) gun to your head. The latter can be addressed since they’re open to peaceful solutions. For example, workers could pool their resources and buy the capital from the owner. If the capitalist refuses, then the workers could quit en masse and start a co-op with their own capital. Or workers individually or in partnerships could start their own businesses. Legitimacy lies in ownership itself, where owners of capital use their capital. White-collar work is as labor-fueled as blue-collar work.

“Your economic system wouldn’t exist without the state.” It’s very possible anti-capitalists and anti-socialists who make this argument do so with having little to no knowledge about real-world, free-market economics. Marx, et. al were anti-capitalists who grew up in privilege and took advantage of the pathos appeal in their writings. An anarchist who understands economics are neither anti-capitalist nor anti-socialist. Economic systems are not dependent on political systems. Anarcho-capitalism is as credible a theory as anarcho-socialism is. The question is: would you use force to prevent an economic system you disapprove of?

Kenny Kelly

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What Is Polycentric Law?

Editor’s Pick. Written by Tom Bell.

Do you like having options when you look for a new bank, dry cleaner, or veterinarian? Of course you do. You want to find the service that will best satisfy your particular demands, after all, and you know that when banks, cleaners, and vets have to compete they have a powerful incentive to make you happy. A monopoly, in contrast, can take its customers for granted.

Polycentric law simply extends that observation from commercial services to government ones. Just as competition makes life better for those who seek banking, cleaning, and pet care, it can benefit those seeking fair and efficient legal systems. Competition helps consumers and citizens alike.

Polycentric law regards the sorts of legal services that governments provide—defining rules, policing their application, and settling disputes—as a ripe field for competition. When a government claims a monopoly in the law, it tends to neglect the needs of its subjects. In a polycentric system, however, providers of legal services care more about what consumers want. They have to, if they don’t want to go out of business.

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An Empirical Inquiry into Polycentric Power Structures

Editor’s Pick. Written by Wheylous.

When anarcho-capitalists argue that protection should be provided in a private manner by companies instead of coercively by governments, opponents maintain that neighboring police agencies will start fighting amongst each other. The argument goes that one company will decide that it will make more money if it physically forces another company out of business, and this sets the stage for endless fighting. Structures that have many police forces in the same general area are thus bound to fail. Robert Murphy has an excellent refutation of this line of argumentation in his article “But Wouldn’t the Warlords Take Over?” Here, I will turn the opponents on themselves and challenge them to explain what makes government work.

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