Ever since I became a libertarian in the late 1970s, there has been an ongoing debate within the libertarian movement between libertarians who advocate limited government and those who advocate anarchy, meaning a society based on the absence of government. Famous libertarian advocates of limited government include Ludwig von Mises, Friedrich Hayek, Milton Friedman, and Ayn Rand. The most famous libertarian proponent of anarchy is Murray Rothbard, who authored the 1973 pro-anarchy book For a New Liberty: The Libertarian Manifesto and who is generally recognized as the father of what has become known within the libertarian movement as “anarcho-capitalism.”
Over the years, I have periodically engaged in informal debates on this issue and even organized a “limited-government versus anarchy” debate at a summer seminar at The Foundation for Economic Education, where I served as program director from 1987 to 1989. However, I have never written an article on the subject, thinking that it was more important to focus my attention primarily on the federal government’s infringements on liberty than to engage in this intra-libertarian debate.
Since the issue is still the subject of vibrant discussion within the libertarian movement, both in academic and nonacademic arenas, I have decided to weigh in on it with this multipart essay, which will analyze the limited-government paradigm and explain the reasons I favor it. It will also show how and why limited government has both succeeded and failed in major ways and will show what needs to be done to bring limited government to our land. The essay will also analyze the anarchy paradigm and explain the reasons I oppose it. It will also show the fatal fallacies of anarchy and explain why I believe that the adoption of the anarchy paradigm would be a monumental mistake.
Let’s begin with the Declaration of Independence and the book on which it is based, John Locke’s Second Treatise on Government. Locke and Thomas Jefferson, the author of the Declaration, pointed out that people have been endowed with certain fundamental, natural, God-given rights. They include life, liberty, property, and the pursuit of happiness, which encompass freedom of speech, freedom of the press, religious liberty, the right to own property, economic liberty, and many others.
Such rights can be summarized in the following way: People have the right to do anything that’s peaceful. That is, so long as people don’t murder, rape, steal, burglarize, trespass, defraud, or otherwise forcibly interfere with the lives of other people, who themselves are pursuing happiness in their own way, they are free to make whatever choices they want in life, no matter how irresponsible, immoral, or dangerous others consider such choices to be.
There is no doubt that most people in life are peaceful. Walk into a busy shopping mall on any weekend. You will see thousands of people, nearly all of whom are peacefully going about their lives without killing, robbing, or otherwise violating the rights of others. If disputes arise, most often they are settled without violence.
If everyone in the world behaved in a peaceful manner toward others and if everyone amicably settled his disputes with others, there would be no need for government.
But we all know that life doesn’t work that way. In every society, there are those who choose to violate the rights of others with violence. There are murderers, rapists, thieves, defrauders, robbers, and the like.
We also know that well-meaning people are often unable to arrive at an amicable settlement of disputes with each other.
And we know that throughout history there have been brutal regimes around the world that have invaded and conquered other countries and subjugated their citizenry.
That’s why we need government — to protect people’s right to live their lives as they want, so long as their conduct is peaceful. As Jefferson put it in the Declaration, “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Thus, as limited-government proponents have long pointed out, there are three primary and legitimate functions of government: (1) to punish murderers, rapists, robbers, and the like; (2) to provide a court system in which people can peacefully resolve their disputes; and (3) to defend the nation from foreign invasion.
The government of one law
Imagine that you’re living in a society in which there is a government that has enacted only one law — a criminal law prohibiting people from murdering others. As long as you don’t murder, you can do whatever you want. Would you feel that you were unfree in that society? Sure, the murderer might say that he’s not free because he’s being prohibited from murdering others. But genuine freedom doesn’t entail the right to violate the rights of others — it entails only the right to engage in peaceful activity.
How and why would such a law come into existence? As previously pointed out, most people in life are peaceful but there is always going to be a small minority of murderers and other violent malefactors. I don’t know what the exact percentages are and I’m sure they vary from society to society and from year to year. But let’s just say, for argument’s sake, that 98 percent of people are peaceful and that 2 percent are murderers, robbers, rapists, and other violent violators of people’s rights.
While there certainly are pacifists in society, most people hold that peaceful people have a right to defend themselves from those who violate their rights. In the case of murderers, for example, most people hold that peaceful people have the right of self-defense — that is, the right to shoot back at someone who is shooting at them with the intent to kill them.
If the murderer succeeds in killing his victim, the 98 percent have an interest in making him pay for his crime. Otherwise, if he’s permitted to get away with it, he might well continue doing it and also induce others to do the same. So, the 98 percent have an interest in bringing the murderer to justice and making him pay for his crime, usually through incarceration and sometimes through restitution ordered to be paid to the victim’s family.
Over time, the 98 percent find that it’s cumbersome for each of them to have to apprehend the murderer, incarcerate him, or otherwise punish him, especially since the murderer might fight back. Many people simply lack the competence to engage in law enforcement.
So, the 98 percent decide to delegate their individual right of self-defense, which encompasses finding the malefactor, arresting him, and punishing him, to a competent third party — i.e., a sheriff.
Notice something important about a society that has a government with only this one law: It does not violate what is known as the libertarian nonaggression principle — the principle that holds that it is morally wrong for anyone to initiate force against another person. That’s because self-defense is defensive force, not initiatory force.
The same principle applies as we add other criminal laws to the books, such as robbery, theft, burglary, rape, and fraud. Commit them and the official designated representatives of the 98 percent will come and get you, charge you, try you, and, if convicted, punish you. Otherwise, you’re free to live your life any way you want without interference by the state.
There is still another factor to consider, however: How do we know that a person really has committed a crime that he is accused of committing? What if the person who is being accused of the crime denies that he’s guilty? Should the 98 percent nonetheless simply accept the validity of the accusation and inflict punishment on the accused? That’s certainly the way things sometimes worked in the old Wild West, where “vigilante justice” sometimes prevailed. After a posse caught up with an accused cattle rustler, he was sometimes given a quick “trial” by the posse, strung up on a tree, and hanged by the neck until dead.
In medieval times, guilt was determined in another way — through “trial by ordeal.” If the accused walked barefooted over red-hot plowshares without injury, for example, he was declared not guilty. Or he was forced to place his hand in boiling water and if God had not healed his wounds after three days, he was declared guilty.
Over centuries of the development of English and American common law, however, the 98 percent came up with what I believe is the greatest judicial system that has ever been developed for ferreting out the guilty and imposing punishment on them — one that entails judicial principles stretching back centuries into American and British jurisprudence.
In the United States, before someone can be punished for a crime, he must first be formally notified of what he’s been charged with, and it has to be a criminal law that was on the books when the crime was alleged to have been committed — i.e., no “ex post facto” laws. The accused is guaranteed a trial in which he is presumed innocent. The state has the burden of proving his guilt beyond a reasonable doubt, which is the heaviest burden of proof that the law has. He can confront witnesses against him and cross-examine them, sometimes with the aim of showing that they aren’t telling the truth. He can summon witnesses to establish an alibi and introduce other evidence consistent with innocence. If he wants to, he can remain silent, or he is free to testify in his own behalf. He has the right to a speedy and public trial. He has the right to bail. He has the right to have an attorney appearing in court on his behalf.
Many of these procedural protections are subsumed under the term “due process of law,” a term that is found in both the Fifth and Fourteenth Amendments. The term stretches back to the year 1215, when the great barons of England forced their king to promise that the government would not go against people in violation of “the law of the land.”
Under American law the accused has the right of trial by jury, which is perhaps the most profound procedural right in the history of criminal jurisprudence, one that is not found in the judicial systems of most other countries. The famous 18th-century legal commentator William Blackstone called it “the principal bulwark of our liberties.” Rather than have a tribunal or a judge determine his guilt, the accused can elect to have a group of ordinary citizens randomly selected from the community come into the courtroom, hear the evidence, and decide whether to find him guilty or not guilty.
Why is that so important? Over time, officials who serve on judicial tribunals and judges who preside in courts often become cynical and jaded and sometimes even implicitly operate as agents for the state. They see a person brought before them on charges and, within their own minds, they presume that he’s guilty. Moreover, it rarely occurs to tribunal officials and judges to question the morality or conscionability of the specific law with which the person is charged.
Juries are different. My experience in twelve years as a litigating attorney is that jurors take their responsibilities, their oath, and their instructions very seriously. When they are told to presume a person innocent, they really do that. When they are instructed to acquit a person if they find that the evidence fails to convince them of guilt beyond a reasonable doubt, they do that, even if in their hearts they believe that the person really did commit the crime. Most amazing of all is that jurors in U.S. criminal cases at both the state and federal level actually wield the power to acquit someone for any reason they want, including a belief that the law that he’s being charged with is immoral or unconscionable.
Are people who have actually committed crimes acquitted by juries or otherwise released owing to procedural protections that stretch back centuries in American and British jurisprudence? Of course, but the reason that those procedural protections arose and ultimately became an established part of the law was to protect the innocent. Since punishing a person for committing an act that he didn’t commit is considered so abhorrent, long-established procedural protections represent the will of most people within the 98 percent to err on the side of caution, even if that means letting lots of guilty people go free. As Blackstone put it in 1765, “Better that ten guilty persons escape, than that one innocent suffer.”
Does all that mean that America’s judicial system is perfect? Of course not. No system devised by men is ever going to be perfect. Everyone agrees that America’s judicial system needs improvement and will always need improvement.
Thus, the issue isn’t whether the U.S. judicial system needs to be improved. Instead, the issue is whether the American people are going to ditch a legal system that is based on at least eight centuries of development and evolution and ditch a governmental system that has stood for more than 200 years, both of which have, for much of that time, provided the greatest ambit of liberty and prosperity in history for multitudes of people, in favor of a system in which every single person is free to compete in the providing of private judicial services, law enforcement, and military defense.
Anarchists respond, “Not so fast, Jacob! Your ideal concept of limited government violates the libertarian nonaggression principle and the principles of a free society in two major ways: first, through taxation and, second, by prohibiting people from establishing private, competitive police forces, defense forces, and judicial systems.”
We will examine those two objections in part 2 of this essay.
This article was originally posted in the March 2016 edition of Future of Freedom.