©2015 By ILANA MERCER
To the extent the Constitution comports with the natural law—upholding the sanctity of life, liberty, privacy, property and due process—it is good; to the extent it doesn’t, it is bad. The manner in which the courts have interpreted the U.S. Constitution makes the Articles of Confederation, which were usurped in favor of the Constitution at the Philadelphia convention, a much better founding document than the Constitution.
THE SIN OF ABSTRACTION
Unless remarkably sophisticated and brilliant (as only Hans-Hermann Hoppe indubitably is), the libertarian anarchist invariably falls into sloth. Forever suspended between what is and what ought to be, he settles on a non-committal, idle incoherence, spitting venom like a cobra at those of us who do the work he won’t or cannot do: address reality as it is. This specimen has little to say about policy and politics for fear of compromising his theoretical virginity.
Suspended as he is in the arid arena of pure thought, the garden-variety libertarian anarchist will settle for nothing other than the anarchist ideal. And since utopia will never be upon us, he opts to live in perpetual sin: the sin of abstraction.
Indeed, arguing from anarchism is problematic. It is difficult to wrestle with reality from this perspective. This is not to say that a government-free universe is undesirable. To the contrary. However, the sensible libertarian is obliged to anchor his reasoning in reality and in “the nit and the grit of the history and culture from which it emerged,” in the words of columnist Jack Kerwick.
This mindset maligned here is not only lazy but—dare I say?—un-Rothbaridan. For economist and political philosopher Murray Rothbard did not sit on the fence reveling in his immaculate libertarian purity; he dove right into “the nit and the grit of the issues.” And the “nit and grit” for this not-quite anarchist concerns the problems presented by the private production of justice.
COMPETING THEORIES OF JUSTICE
A belief in the immutably just nature of the natural law must elicit questions about the wisdom of the private production of defense, as this could, in turn, give rise to legitimate law-enforcement agencies that uphold laws for communities in which natural justice has been perverted (in favor of Sharia law, for example).
It’s inevitable: In an anarcho-capitalistic universe, fundamentally different and competing views of justice (right and wrong) will arise. And while competing, private protection agencies are both welcome and desirable; an understanding of justice, predicated as it is on the natural law, does not allow for competing views of justice.
How, then, does one reconcile this inevitable outcome with the natural law and the emphasis on the search for truth as the ultimate goal of justice?
To let the victim forfeit—or choose his own form of—redress for certain misdemeanors is fine. Many legal solutions are a result of mediation and other perfectly private solutions to non-violent offenses. To leave punishment for murder, rape and other violent crime to the vicissitudes of the victim or his proxies is, however, unacceptable. The likelihood that in a stateless state-of-affairs, a victim or her proxies will choose to let a violent offender go free in favor of financial restitution cannot be ignored or tolerated.
It matters not that such an eventuality may be rare, or that similar injustices occurs under the state. These should never happen. Not under the state. Not under anarchy.
Furthermore, does the voluntary forfeiture of just retribution not imply, in the case of murder, that the right to life is a right the victim’s surrogates may choose to alienate or relinquish at will? How else does one construe this position? The danger of reducing justice, in cases of violent crime like homicide, to a negotiated deal amounts to moral relativism and is a recipe for nihilism.
Anarchists also ignore that a violent offender presents a clear and present danger to others, and that his fate, at least in a civilized society, is the prerogative not only of the victim. Libertarian anarchists will correctly counter that, under a minimal state and certainly under the state today, criminals could—and do every day—get away with murder. This is because the justice system is horribly flawed. This fact is insufficient a reason to support a state of affairs where, as a matter of principle, proportional, moral retribution will not necessarily be the goal of justice.
The kind of justice sought in anarchy would depend on the victim, not so? It is unlikely that she will support unconditional love—euphemized these days as restorative justice—as an antidote to rape. But if she’s of the Left, it’s quite possible.
Conversely, under a system in which competing theories of justice prevail, personalized “justice” may well take the form of vendetta. For example, and as one anarchist retorted: “If a woman is raped, she could demand proportional restitution (e.g., whatever fines imposed on the criminal necessary for the emotional harm caused her, including castration and the unexpected forced rape of the criminal). The criminal would simply be enslaved to the victim (or her punishment agency, more likely, if she didn’t want to deal with him), until repayment had been met. The court could decide, for example, that for restitution, the rapist is to pay the victim $1 million and be violently raped himself.”
What if the offender dies due to castration or forced rape? Is that proportional justice? What was suggested above is barbaric vigilantism. Under anarchism, the proposal above could be adopted as a matter of principle rather than as an aberration to be rectified. Civilized, moral retribution should aim to avoid such barbarism.
JUSTICE FOR ALL VS. CLIENT-CENTERED JUSTICE
As was observed, victims could demand disproportionate punishment and the enforcement agency would comply. Not all victims, moreover, will be covered by private protection agencies. Who ensures that justice is meted in cases where individuals cannot afford or opt not to contract with a private protection firm? There is little if no incentive for such an agency to pursue a dangerous offender who has not harmed their client. Do we, then, rely on good Samaritans to take up arms and hunt down the offender? Or do we as a society, through the common law, make a public declaration of the few abiding values we wish to uphold?
To the extent possible, there must be a commitment, however imperfect, to justice for all and not only for those who’ve contracted with a private protection agency.
So while the current criminal justice system is often egregious in its approach to victims, the libertarian’s characterization of the private production of defense as “victim-centered” is misleading. It is client-centered.
Again, that we suffer depredations under the state is insufficient an argument for making this state-of-affairs a viable, “principled” option, which would likely be the case under anarchy.
Finally, libertarian anarchists often make their case with wacky references to anarchism in small homogeneous societies—Medieval Viking Age Iceland—or even less convincingly, among the murderous tribes of Africa. For some loopy reason, they prefer this no-man’s la-la land to the followers of John Locke. I don’t conceal my preference for Western tradition, nor the positive view I hold of the accretive genius of the common law.
Ultimately, it is better to distinguish good from bad arguments than to separate anarchist from minarchist positions. The goal of libertarian justice should therefore be to advance just, rights-based positions.