Law without Big Brother
Lots of people seem to think they need Big Brother to tell them—or, at least, to tell other people—what to do. They have trouble envisioning a peaceful, voluntary society because they assume that someone needs to monopolize the use of force. Otherwise, they’re afraid, life will be (in Thomas Hobbes’s famous phrase) “solitary, poor, nasty, brutish, and short.”
Let the skeptics know that law could be an integral aspect of life in a peaceful, voluntary society and they’re likely to roll their eyes. Any entity, they might say, that does identify and enforce law just is a state. The fact is, though, that you can enforce law without being, or being indistinguishable from, a state.
What makes law without the state different? It’s consensual. In a peaceful, voluntary society, people would be obligated by laws or legal systems to which they had actually consented.
It’s part of the modern state’s legitimating ideology that it rests on “the consent of the governed,” but of course it doesn’t: most people haven’t even tried to consent to the state, and the fact that the state threatens to use force against the uncooperative means that no one can really give voluntary consent to its authority.
By contrast, in a peaceful, voluntary society, people could choose to affiliate with various legal regimes. Some might be work-based. Some might be geographic. Some might be religious in nature. Some might be for-profit not-for-profit firms or cooperatives established specifically to provide legal services. The important thing is that someone could choose among them freely—agreeing to be a client of one (or more, since some might be quite specialized), and then, if things didn’t work out, opting for an alternative. Accepting the authority of any of these legal regimes would be a matter of genuine consent. Agreements among regimes—agreements accepted consensually by the regimes’ clients—would determine how disputes between people affiliated with different regimes were resolved.
Don’t expect the skeptic to give up at this point, though. The idea of free consent, she may say, is the idea of consenting when you’re not under duress—when whoever’s seeking your consent isn’t violating your rights and isn’t threatening to do so. But the law determines what people’s rights are. In the law’s absence, the idea of voluntary consent is meaningless.
The problem is with the skeptic’s second premise. Of course the law determines what people’s legal rights are: that’s a tautology. But the notion of voluntary consent isn’t a narrowly legal notion; it’s a moral notion. And people can be morally entitled to rights whether any legal system acknowledges those rights or not—that’s why we can talk about just and unjust laws. Obviously, there will be disagreements about what those moral rights are, but we can reasonably judge that, as long as what we take to be people’s genuine moral rights are being respected, they can give truly voluntary consent to a legal regime’s authority.
A peaceful, voluntary society would be a great society, but it wouldn’t be a perfect society: some people—call them outlaws—might try to engage in aggression against others, and some of them might try to do so while not affiliated with any legal regime. Perhaps the skeptic will allege that a regime’s use of force to defend against outlaws is unjust because they haven’t consented to its authority directly or indirectly. But the problem here is, again, the failure to remember the importance of moral rights. People can consent to a variety of specific legal arrangements, but their moral rights provide the backdrop for their consent. Moral rights aren’t created by the law, so it’s just to defend them whether or not the person seeking to violate them has consented to a legal rule explicitly protecting them: moral rights don’t depend for their existence on the consent of their would-be violators.
Law plays a useful role in maintaining social order and facilitating people’s peaceful, voluntary cooperation. So there’s no reason to think it would be absent from a peaceful, voluntary society. In such a society, however, it would be rooted, not in the arbitrary authority of Big Brother, but in people’s genuinely free consent.
Gary Chartier will be speaking at Libertopia Festival 2011 in San Diego