Essays and Commentaries

by Robert Bidinotto


This series of posts represents one of the few efforts by an advocate of constitutionally limited government to address, in detail, the arguments raised by contemporary philosophical anarchists. It is even rarer for someone to do that from the general frame of reference of the Objectivist philosophy.

For that reason, over the past couple of decades, my commentaries have drawn considerable critical attention from the anarchist community. Regrettably, the online sites where my commentaries used to be archived have since disappeared. So, in the interest of giving them a permanent home on the internet, I have compiled them here.

The first lengthy essay, "The Contradiction in Anarchism," originally appeared in 1994 as a series of three posts to a long-defunct online forum, the Moderated Discussion of Objectivist Philosophy (MDOP). They were written hastily and informally in the heat of ongoing debate. The essay thus shows some ragged editorial seams, including considerable repetition and occasional grammatical lapses. But upon rereading it, I find nothing of substance that I need to change. I've added only a few clarifying points here and there, in brackets.

A decade after the essay was posted, Dr. Roderick Long, a prominent anarchist, challenged its arguments in a series of online posts. At the time, I had a blog in which I responded to Dr. Long with several replies. That blog disappeared when its host site closed down operations. So I have appended to my original essay that series of my replies, as well, quoting Dr. Long's criticisms and summarizing the key points of my position.

I conclude this series of commentaries with a 2004 essay, "The Goal of Law: Justice or Utility?" Among other things, it responds to utilitarian criticisms of my perspective raised by the well-known anarchist economist Dr. Bruce Benson.


The Contradiction in Anarchism

by Robert Bidinotto

Copyright (C) 1994 by Robert James Bidinotto. All reprint rights reserved.


In his posting [to the Moderated Discussion of the Objectivist Philosophy mail list], T. Franklin Harris, Jr. writes:

Anarcho-capitalism is far from a "floating abstraction." It is founded on the principle of non-coercion (the state is seen as inherently coercive) which comes, in turn, from natural rights theory, which, as [libertarian theorists Douglas] Rasmussen and [Douglas] Den Uyl note, makes up meta-normative principles necessary for human beings being complete moral agents.

In an earlier posting, he said that...

...the main anarcho-capitalist point is that a monopoly on the use of retaliatory force must also include a legal monopoly on the use of coercive force. Outlawing alternative protection services if such services respect individual rights must be itself an act of coercion and thus immoral.


If other protection agencies use force only for retaliatory and not coercive purposes, then outlawing such agencies would be coercive force.

Thus he proposed... question how a monopolistic government can be created that does not, by its very nature, violate the rights it is--in the Objectivist view--charged to protect...

In short:

Outlawing protection agencies that use only retaliatory force--and thus, have not violated any rights--is an act of coercion.

That's a pretty good restatement of the "anarcho-capitalist" argument, which was refined in the late '60s by Objectivist-influenced anarchists, such as Morris and Linda Tannehill, and the late Roy Childs (who later changed his mind). On its surface, it seems seductively simple:
  1. The initiation of coercion and force is immoral. (Rand)
  2. Government is an institution which maintains a legal monopoly on the retaliatory use of force in a given geographical area. (Rand)
  3. But to maintain a legal monopoly on the retaliatory use of force, a government must initiate coercive force to exclude competitors.
  4. Hence, to exist as a legal monopoly on the retaliatory use of force, a government must employ immoral means.
  5. Government is thus intrinsically immoral and self-contradictory.
  6. Hence, Ayn Rand's pro-government position contradicts her basic ethics (Roy Childs' argument in his early essay, "The Contradiction in Objectivism").

This argument is a splendid instance of rationalism: it proceeds deductively from a limited set of premises which are presumed to include all the relevant considerations. But in fact, they do not. Here is just a sampler of the contextual considerations omitted:
Exactly who determines what use of force is "initiatory" or "coercive," and what is "defensive" or "retaliatory"? By what process is that determination made? Or, to put it in terms of "rights": Who determines whether, in any given use of force, "rights" have been violated--and thus, who is the aggressor, and who the victim? By what procedure? What theory or interpretation of "rights" is to be used? Rand's? Henry George's? Lenin's? For society, how are such determinations made with finality? And how is that verdict enforced? As a corollary: who determines which agency is a "protection agency," and which is a mere gang of aggressors? By what method and standard?

You see, anarchists sincerely believe that they are merely advocating "competition" in the protection of rights. In fact, what their position would necessitate is "competition" in defining what "rights" are.

What anarchists omit from their basic premises is a simple fact: conflicting philosophies will lead to conflicting interpretations of the meaning of such basic terms as "aggression," "self-defense," "property," "rights," "justice," and "liberty."  Deducing away, syllogism after syllogism, from these mere words does not mean that the people employing them agree on their meaning, justification or implementation.

Without a philosophical consensus, "competing agencies" (driven to maximize profits by satisfying their paying customers) will offer opposing, rival social factions any interpretations each wants. Definitions of "rights" and "liberty" and "justice" will become as much a matter of "competition" as will the methods, personnel and procedures each agency will offer to provide. And which agency will attract the most customers? Of course, the one that "gets results" by best satisfying consumer demand: i. e., the one which can impose its own definitions of "aggression" and "self-defense" on competitors.

After all, would you hire an agency that couldn't adequately protect your own interpretation of your rights? Consider the justly-maligned profession of defense attorneys. They'll defend any client for a buck, using any argument, any tactic to boost their chances of winning, truth be damned. (When people today say, "I need a good lawyer," do they mean "I need a pillar of integrity"--or do they mean instead: "I need a guy who can win for me"?) Would anyone argue that it is merely the fact of "government courts" that make these shysters possible? Don't you suppose that they would find similar employment in a totally privatized system, in which the "sovereign consumer" reigns?

Then why limit such amoral, anything-to-win behavior only to attorneys? Isn't it reasonable to assume the same motives would govern at least a significant portion of "protective agents"?

Today, a "legal monopoly" exists to put shady private detectives and private extortionists behind bars. It serves as a final arbiter on the use of force in society. We all agree it does a less-than-exemplary job much of the time; but it's there. What happens when it isn't? Or worse: when the shady detective or extortionist has replaced it, in a marketplace where profits depend on satisfying the subjective desires of emotional clients?

Anarchists say this scenario is unrealistically pessimistic: it assumes people are going to want to do the wrong thing. In fact, people "naturally" seek their rational self-interest, they declare, once government is out of the way. They would try to cooperate, work things out.

Well, if they did, why would they need any agency--governmental or private? Why wouldn't five billion people [now 6.3 billion] naturally cooperate on this planet without any legal or institutional framework to resolve disputes?

The problem, of course, is everyone disagrees about what his rational self-interest is. Ask the Palestinians and the Israelis to define "rights," "force," "property," "justice," "self-defense," and "protection." Or ask the IRA and the British. Or George III and George Washington.

So, how do we best limit the capricious use of force by those millions whom we call "the public"? Let's compare anarcho-capitalism with limited government.

Under anarcho-capitalism, "the public" is called "the market," and "votes with its dollars" to have its way about the use of force in society. In a political system (i.  e., under a "monopolistic government"), "the public" is called a "political constituency," and votes with ballots in order to have its way about the use of force in society.

But in the latter case, if the government has been constitutionally limited, the masses are typically thwarted in having their way at the expense of others. They can't use force to do anything they want. As private criminals, their acts are limited by the government. And government agents themselves are limited  by the Constitution. Our Founders were geniuses at limiting power. It's taken lovers of coercion over 200 years to subvert our Founder's system to its current state; and still, our system is far from being totalitarian.

In the market, by contrast, what's to stop thugs, and by what standard? Surely no private company would deliberately handcuff itself, with separations and divisions of powers, and checks and balances. Such silly, inefficient "gridlock" and "red tape" would only make it less competitive. No, a competitive company must be flexible to respond to shifting "market demand." That means the demand for whatever consumers may want, anything at all. It can't tie its own hands by limiting itself. After all, some other company or industry would always be willing to operate without such moral self-limitation. What firm would restrain itself, when the sleazy, unscrupulous Acme Protective Service across town is just itching for the same customer contracts, and willing to promise clients "no limits?"

Anarchists proclaim faith that in the marketplace, all the "protection" companies would rationally work everything out. All companies in the private sector, they assert, have a vested interest in peace. Their reputations and profits, you see, rest on the need for mutual cooperation, not violence.

Oh? What about a reputation for customer satisfaction--and the profits that go with getting results? I guess anarchists have no experience in the private sector with shyster lawyers, protection rackets, software pirates and the like. Aren't they, too, responding to market demand?

If the "demand" for peace is paramount, please explain the bloody history of the world.

Anarcho-capitalists forget their own Austrian [school of free-market] economics. It was [economist Ludwig] Von Mises who described the marketplace as the ultimate democracy, where "sovereign consumers voted with their dollars" to fulfill their desires. Not necessarily good desires, mind you: just "desires." Whatever they happened to be. The market was itself amoral: it simply satisfied the desires of the greatest number. (That's why Howard Stern sells better than Isaac Stern.)

In other words, the market, like water, can't rise higher than its source. And its source is the people--the same people who vote in a representative political system. The marketplace is no more moral than the people who are "voting with their dollars." If there's a demand, some supplier will always come along to fill it--a demand for anything from chocolates to child prostitutes. What "market mechanism" would arise to distinguish between the two--and by what right and standard would it enforce such distinctions?
*  *  *

Anarchists think the "invisible hand" of the marketplace will work in the place of government. But read what Adam Smith had to say about businessmen in that famous "invisible hand" passage. Smith knew that government was a precondition of the market, and of the working of the "invisible hand." Without government, the "invisible hand" becomes a closed fist, wielded by the most powerful gang(s) to emerge. Why? Because government prevents competing forces from defining--and enforcing--their own private "interests" subjectively and arbitrarily.

Even if 99 percent of "protection agents" behave rationally, all you'd need is one "secessionist" outlaw agency, with its own novel interpretation of "rights" and "justice," tailored to appeal to some "customer base" of bigots, religious fanatics, disgruntled blue collar workers or amoral tycoons with money to burn. Do anarchists care to argue that outlaw agencies--given our current intellectual and philosophical "marketplace"--would have no such constituencies? Dream on.

Oops--did I say "outlaw?" Under anarchy, there is no final determiner of "the law." There would be no final standard for settling disputes, e. g., a Constitution. That would be a "monopoly legal system," you see. That's because anarchists support the unilateral right of any individual or group to secede from a governing framework. (After all--wrote anarchist Lysander Spooner a century ago--I didn't sign the Constitution, did I?)

So whose laws, rules, definitions and interpretations are going to be final?

Consider the logical alternatives under anarcho-capitalism. Either...
1. No "protection agency" imposes or enforces any of its interpretations, standards, definitions, decisions or verdicts on any other competing agency, or on any individual acting as his own agent. In which case, there is no "final arbiter" of disputes, no court of final appeal, no enforceability. Everyone some agency deemed "guilty" of an improper initiation of force would retain a unilateral right to ignore the verdict of that agency, or to "secede" from any rule-making framework designed by that agency or any group of agencies.

From a practical standpoint, a "protection agency" which could not enforce retribution or restitution against a wrong-doer would be a paper tiger. Who would pay for such toothless "protection"?  Who would stand to lose?

But who would stand to gain under this option? Only the thugs, who would unilaterally declare themselves immune from anyone's arrest, prosecution or punishment. Either as individuals or in gangs, they would use force, unconstrained by the self-limitations adopted by the "good" agencies.

In short, under this option, the good would unilaterally restrain themselves, while the bad would assume the right to use force without self-limitation, and with no fear of retaliation. This option would mean de facto pacifism by the moral, in the face of the immoral.

Now consider the only other option available under anarcho-capitalism:

2. Some enforcement framework must eventually arise and impose final verdicts on everyone. In practice, this would mean either (a) a dominant agency arises in the market, and enforces its interpretations and verdicts on everyone else, by brute force and coercion if necessary; or (b) a group of agencies decides to impose a mutually-agreed-upon framework on everyone. In short, a single legal system and final arbiter mechanism would arise by "market forces." (This utopian notion is endorsed by many anarchists, who concede that in the market there would likely arise a single legal framework.)

Alas, this does not resolve the anarchist's dilemma. In either 2(a) or (b), you have a de facto "legal monopoly" on the use of force--the same "immoral" coercive situation for which anarchists denounce governments. Wouldn't 2(a) or (b) amount to "unlimited majority rule," or "might makes right"? In the final analysis, no one would be allowed to ignore or secede from the verdict imposed by the majority of agencies. If so, then what becomes of the alleged "right to ignore the state," the "right to secede," or the "right not to delegate away one's personal "right of retaliation"? Also, what becomes of the minority agencies which disagree with the majority--or to any lone individual who is not represented by any agency? Where is "consumer sovereignty"?

In sum:

Either you have no final arbiter to enforce verdicts, or you do.

If you have no final arbiter, your de facto pacifism gives society's thugs a carte blanche--which means society will be run by brute force and thugs--which is immoral.

If you do establish some final arbiter, with the power to enforce its verdicts against all "competitors," then you have--voila!--a final "legal monopoly" on the proper use of force...which anarchists declare to be immoral.

Anarchists can't evade this dilemma by making excursions to [the informal conflict resolution system in] ancient Iceland or to science-fiction Utopias of the future. The fact that the Icelandic model didn't last, ought to tell us something about the viability of any science-fiction model of the future.

So, who would really rule the anarcho-capitalist utopia? The same guys who rule it now. They would be elevated by the same popular constituency that now elects them. The only difference would be is that under anarcho-capitalism, there'd be no institutional limits on their behavior.

In fact, every accusation anarchists raise against government would apply in spades against private "protection agencies."

The answer to unlimited government is not the "unlimited democracy" of the Misesian marketplace. [Economist Ludwig von] Mises knew better (read his Bureaucracy). But anarchist rationalists, like [Dr. Murray] Rothbard, haven't yet figured out that "force" is not just like any other good or service on the marketplace.
*  *  *

The anarcho-capitalist position against a "monopoly government" is, at root, a rejection of the idea of any final arbiter on the use of force in society. He calls that arbiter "coercive," because it does not allow one who disagrees with its final verdict, or its procedures, or its personnel, to exercise an unrestricted, unilateral "right" to secede from the process, or to impose his own subjective will.

Put another way: the anarcho-capitalist position amounts to the demand that one's own use of force be immune from the moral evaluation and response of others. It is a demand for the right to secede from the judgments of other people concerning the validity of one's own use of force. It is a denial that there is a basic need to subject any use of force to objective--that is, socially demonstrable--standards.

No, force isn't like any other "good": by its nature, it poses unique hazards to the lives, rights and well-being of the innocent. When someone uses force against another, it's rarely self-evident who is the victim, and who the victimizer--who is attacking, and who is defending. Yet maintaining a functioning society requires that the rest of us determine who is at fault, so that our rights will be protected and justice maintained. Thus, force always must be subject to outside constraint--and its use must be subjected to an impartial, objective, ex post facto process of social judgment. That's the purpose of laws, courts and public trials, i. e., of government.

The basic premise of anarcho-capitalism is false. There is no such thing as the "right" to employ force unilaterally--then to remain immune from the requirement to publicly, objectively justify that use of force. No such right exists. So it is no "violation of rights" to require individuals to submit to an objective process to justify, publicly, their uses of force--i. e., to submit to governmental authority.

That, incidentally, is why these corollaries also apply:

1. There is no such thing as a subjective "right of retaliation"--i. e., an arbitrary, after-the-fact right to use force against a victimizer. (At least, not so long as there is an organized governmental alternative.) A key function of government is to subject the retaliatory use of force to the moral constraints of proportionality--something no victim, in the heat of passion, can be relied upon to do. So while one retains a right of personal self-defense (meaning: the right to respond forcefully in immediate defense of one's life and values against aggression), after-the-fact forceful responses are illegitimate, and must be left to an objective, impartial agency. Why? Because society has no way of knowing if an individual's "retaliation" may actually be nothing more than rationalized or disguised aggression.

2. There is no such thing as the "right" to remain immune from court subpoena, pretrial arrest and/or detention, either.

Anarcho-capitalists [such as the late Roy Childs] have said that court subpoenas are an initiation of force against someone who is "presumed innocent," forcing him to attend a trial before he has been found guilty of anything. Some have argued, on the same grounds, that it is a violation of rights to arrest or detain a criminal suspect before his trial.

Let's leave aside the absurdity of trials without witnesses and defendants, or of accused murderers who, before trial, wave bye-bye to helpless anarcho-capitalist judges and book flights to Rio. Consider the conceptual issues.

The "legal presumption of innocence" is a formal aspect of a trial--a legal status accorded anyone charged with an offense under the law. It is not the same as an assumption about the defendant's metaphysical status. It is only an epistemological presumption--that is, a formal prerequisite to an objective, fact-finding procedure. It applies even to confessed criminals, or to those who commit crimes on national television (like President Reagan's would-be assassin). As a legal formality, it thus presupposes the validity of the legal system and the trial process itself. Hence, it is logically inconsistent to claim its protection as a formal legal status, while denying the validity of the very legal system from which that status arises.

The claimed "rights" of retaliation, and immunity from subpoena (or arrest), are simply declarations of immunity from any requirement to justify one's use of force to others. But there is no "right" to immunity from evaluation--not when the very issue being judged at trial is whether or not rights have been violated.

Society cannot remain agnostic about such events; it must decide them. No one can claim any right to ignore the demands of others that he submit to a process of objective, public evaluation. That is what government is all about. That's why it must serve as a final arbiter. And because we're not ghosts, but occupy space, that's also why it must impose those final verdicts over a defined geographical area.

3. Finally, the Constitution is not any sort of "contract" requiring anyone's signature--because it's binding, not on the people, but on the government itself. It wasn't established to limit the people; it was established to limit government. It is a document setting up a system by which individual rights will be protected, even from government itself.

Lysander Spooner's critique of the Constitution [in his No Treason: The Constitution of No Authority] thus attacks a straw man. With remarkably few inconsistencies, the Constitution didn't impose coercive demands on the citizens, or authorize the government to violate their rights. Rather, it ordered its own agents to protect the peoples' rights, while generally letting them [the people] free to go about their business. What's so intrinsically immoral and coercive about this? What requires personal signatures? (I credit this argument to my late friend, Sheldon Wasserman.)

Government does not inherently contradict actual individual rights. The only "contradictions" rest in the minds of those who want recognition of their personal liberty, while demolishing the only means of rationally determining when individual rights have been violated. Or for doing anything about it.
*  *  *

The whole point of a single, constitutionally limited government is to limit force and coercion--by private parties, and by the government itself. Ayn Rand argued that government was a means of subjecting might to morality. That's not a mere social luxury; it's a basic requirement of human survival. In any society, human life and well-being mandate that there be a set of objective procedures to distinguish aggression from self-defense, and some way of imposing the final verdicts upon both victimizers and victims. It would be impossible for individuals to pursue self-interest within a social context if such determinations were never made--or made arbitrarily--or never enforced.

Yet that's what anarcho-capitalism would give us. It posits "competition" in the use of force, but more: "competition" in defining the rightful uses of force. To whom must these competing "protection agencies" ultimately answer? To what standard are their own actions and verdicts to be held? How can there be any, if a final arbiter (by definition, holding a legal monopoly on retaliatory force) is "inherently immoral," as Harris, [Timothy] Starr, et al. [participants to the online debate] argue?

Mr. Harris says that "Outlawing alternative protection services if such services respect individual rights must be itself an act of coercion and thus immoral." But whose definition of rights?  Whose definition of coercion? Whose morality? It is not "protection," but precisely these definitions that anarcho-capitalists would leave to the Forces of Supply and Demand.

Hence, the problem with the rationalistic argument for anarcho-capitalism begins with its opening premises: with the definitions of terms such as "force," "coercion," "rights," "liberty," "aggressor," "protection," "retaliation," "defense," etc. Anarchists simply deduce away from these concepts, which remain as floating abstractions in everyone's minds. We all think we mean the same things by them. But the contextual consideration omitted by the anarchists is that each of these terms acquires different meanings depending on the philosophy of the interpreter. And at last count, there are about 5.5 [now 6.3] billion  interpreters on our planet.

There's another problem with his statement. A limited government does not outlaw "protective services": witness private bodyguards, security firms, etc. To be more precise, government (1) regulates the use of force by others, including "protective agencies," and (2) serves as the final arbiter in disputes over the use of force. It is over these functions alone that truly limited government declares a monopoly, and does not allow "competition."

Anarcho-capitalists declare this coercive ban on "competition" is immoral. In truth, what the anarcho-capitalist objects to is not government, but the fact that gives rise to the need for one: the need for outside, impartial observers to objectively evaluate and control the uses of force in society.

In sum, what the anarcho-capitalist argument omits are the following vital contextual considerations that attend any use of force in society:

  •  that--as a matter of individual survival in society--one's use of force must be judged and evaluated by everyone else in society, by an objective procedure, in order to distinguish the aggressor from the victim (which is rarely self-evident);
  • that, at some point, a final verdict by society on the use of force must be objectively rendered through that process, and
  • that this final verdict must, at last, be imposed and enforced.

To let "the market" pick a final arbiter on the proper uses of force is to leave it to the majority of consumers, whose "sovereignty" regarding the employment of force is to be unlimited. Leaving it all to "the market" means: "to the whims of whichever individual or group has enough money to dominate those who don't." (Remember: this is competition over the meaning and use of force that we're talking about, not competition in the provision of widgets.)

It means, in practice, guns--or enough cash to buy the gunmen. Can one imagine what "competing protection agencies" would do to non-conforming individuals in any geographic area dominated by, say, racist skinheads? by Marxists? by rabid fundamentalists?

You don't have to: watch the TV news. As some astute commentators have already suggested, we already have "anarcho-capitalism," replete with thriving "competing protection agencies"--in Bosnia, Somalia, Beirut, Northern Ireland, South Africa and scores of other other anarcho-capitalist paradises--including American inner cities.

Take the single issue of abortion. Each side is adamantly convinced that it is defending innocent life and inalienable rights against aggression and coercion. So, my anarchist friends, have your wish: let's remove our "monopoly government" from the picture. Let these factions "compete" in the "marketplace" for "protection." Let each proceed with its own definition and interpretation of "rights" and "force" and "aggression" and "coercion" and "murder." And let each, with moral intransigence, proceed to enforce its own verdicts, answerable to no higher authority. Bring on the market competition!

To reply, "Oh no, that's not what we mean," is simply to duck the issue: even anarchists, libertarians and free marketers can't define or agree upon what "we" mean. In an essay, "What Is Freedom For?," [published in A Man of Principle: Essays in Honor of Hans F. Sennholz (Grove City College, 1992)], I detailed how even self-styled libertarians were in hopeless disagreement over these basic, defining issues. E. g., "libertarians" cannot even agree on what the term "libertarian" means.

Within the "libertarian" universe we have Ron Paul (a strong anti-abortionist) vs. Wendy McElroy (a pro-choice feminist) vs. Russell Means (an Indian activist and former [Libertarian Party] promenenti, with a penchant for shooting at the police) vs. the late libertarian Robert LeFevre (a pacifist who believed that theft transferred property rights to the thief, and that any retaliation or forcible self-defense violated the thief's "rights!"). We have had Ludwig von Mises, a utilitarian who endorsed both taxation and conscription, and Murray Rothbard, who denounces both. I have free-market friends who champion "animal rights," and others who champion environmentalism, while I've taken the opposite side in both cases.

Tell me, please: how do we get all these folks together when, under anarcho-capitalism, each would be writing checks to a different agency to enforce his own "sovereign" notions of "rights," "justice" and "liberty?"

And what would a "free" society look like? Polls of Libertarian Party members, of ISIL [International Society for Individual Liberty] members, and of the readers of libertarian magazines show profound splits among "libertarians" over a wide range of issues, from abortion to immigration to drugs to foreign policy.

For instance: Should kids be allowed free access and use of drugs? Should sex between adults and young children be allowed? Should kids be freed from the control of their parents, and should they be permitted to walk out at whim? If yes in each case, should parents who interfere be stopped--by deadly force, if necessary?

Believe it or not, there are "free marketers" who answer "yes" to each question. Well, what is their status as minority thinkers under "anarcho-capitalism"? Since the majority is likely to find their views on "kids' rights" abhorrent, whose interpretation of "rights" will the majority of protection agencies be likely to enforce--and against whom? Ah, you see, even anarcho-capitalism may not look at all like what some anarcho-capitalists envision. Given current cultural attitudes, in fact, it may be considerably more repressive than the status quo.

To bring this even closer to home, consider the heated debates over fundamental issues (like this one) that characterize this forum. [The forum referred to was an online discussion group, the Moderated Discussion of the Objectivist Philosophy.] How many of you would trust all the other participants to interpret "rights" for you? Even the presumably "like-minded" people on this list can't seem to agree whether Detroit street gangs are merely sociopathic thugs (Bidinotto's view), or unfairly "vilified and scape-goated groups" (Tim Starr's apparent view...)--whether they rob, beat and kill "because they like it" (Bidinotto's view, echoing Dirty Harry), or because the poor lads are rebellious, anti-state "heroes," reacting "defensively" to the fascistic forces behind the War on Drugs (libertarian Professor Walter Block's view).

And if we brilliant, free-market luminaries can't agree on the philosophical source and interpretation of such basic concepts as "aggression" and "self-defense," then what about mere ordinary mortals? If even "we" can't agree on who's the aggressor and who's the victim, how can we expect the millions of Unwashed (who lack our clever intellectual insights and peerless moral integrity) to figure it all out?

Granted: there are many, many problems involved in limiting government to its proper role of being a protector rather than violator of individual rights. There are big problems in staffing and funding such an institution in ways that don't contradict its end. These problems arise largely because there is no social consensus over the philosophy to underpin government.

For the same reason, though, expecting today's voters--who flirted with Ross [Perot] and George [H.W. Bush], and then chose Billary [Clinton]--to be magically be transformed into "rationally self-interested consumers" who, "voting with dollars," will create private "security" firms that will all perfectly understand and interpret "rights" and "liberty," implementing these principles in peaceful harmony, is not simply beyond belief; it is beneath belief.

Yes, creating and maintaining a truly limited government is a huge problem. But that problem is not solved by simply throwing all definitions and uses of force in society onto a free-market auction block.

So, to borrow from Patrick Henry: I know not what course others may take; but as for me, I'll take my chances trying to create or reform one agency, rather than a host of "competitors," each backed by the likes of The 700 Club, the Islamic Jihad, good-ol'-boy bigots, Detroit street thugs, South L.A. rioters, graying New Dealers, animal rights activists, welfare rights activists, LaRouchies, Greenies, the GOP, the Democrats, United We Stand, the NRA, the Black Muslims, Libertarians for Life, the Association of Libertarian Feminists, atheists, Christian Scientists and god only knows.

Has it ever occurred to those who would so eagerly wed the gun with the dollar, why Ayn Rand argued for a separation between Force and Economics?

Contra Anarchism
posted 12/21/03

Prof. Roderick Long has replied online to my essay “The Contradiction in Anarchism” under the title "Anarchism as Constitutionalism: A Reply to Bidinotto." This is my reply to Dr. Long:


Dear Roderick Long:

Your online critique of my anarchism piece ... was just called to my attention.

Let me assure you that I still stand firmly behind what I wrote in “The Contradiction In Anarchism.” Briefly, I don’t believe your commentary begins to satisfactorily address the anarchist problem of the “final arbiter” that I raised—specifically, the anarchist dilemma of trying to establish a stable legal framework, while at the same time allowing individuals to retain an unlimited right to secede from that framework, and any decisions of a market-spawned legal arbiter (assuming that such an arbiter could even arise from “the market” and attract the unanimous support it would require).

Every criticism you raise against a constitutionally limited government applies as forcefully to “market anarchism”—in fact more so. That’s because under anarchism, no final arbiter would be permitted to enforce its verdicts on anyone.

By anarchist lights, all social institutions must arise through voluntary consent, and all social interactions must be based on voluntary contract. Hence, no one can be “bound” by any agency or contract to which he has not voluntarily and personally consented. To be logically consistent with this anarchist claim of unlimited individual sovereignty, then, any legal agency or arbiter could only arise via voluntary social consensus.

But it therefore would be vulnerable to the whimsical secession of the first malcontent. There is simply no way for a voluntary legal apparatus to enforce any law (or interpretation thereof), not even upon a single lone dissenter, and still remain consistent to the anarchist premise of unlimited personal sovereignty.

In logic, there’s really no pathway for anarchists around this sticky dilemma. It will arise in their faces immediately and often—e. g., at the first confrontation between anti-abortionists and pro-choicers over all those alleged “murders.” And not just over definitions of literal life-and-death importance. Common sense tells us that such a lone dissenter (call him a “secessionist”) will opt out in many cases in which a ruling goes against him; and it also tells us that the worst individuals, morally speaking, will be the first and most frequent secessionists. Such a system would reward those most prone to thumb their noses at it. But in principle, what could a voluntary legal system do about it?

To simply declare (as you do) that a viable anarchism must be grounded in a favorable cultural-value consensus, is to evade that issue. While it’s true that a limited government requires broad social support for its overall constitutional framework in order to survive, it does not require unanimous support for, or individual consent to, each of its specific laws, decisions, interpretations, and legal verdicts. A proper constitutionally limited government would offer processes of appeal for dissenters; but its final court of appeal would be empowered to enforce each of its verdicts decisively.

By contrast, “market anarchism” would require much more than just a broad consensus: it would require specific agreement—a unanimity of public opinion—about each and all of the “verdicts” emanating from its voluntary legal apparatus. To remain consistent with anarchist premises, those decisions could not be enforced against a single unwilling dissenter.

In short, “consent of the governed” means very different things under constitutional government and market anarchism. In the former case, the consent required is to a broad and general framework; in the latter, it would be to each specific law, decision, policy, and verdict—and be unenforceable. In practice, anarchism would replace limited government’s hated “social monopoly of force” with social competition of force. . . .

I do hope to be able to get back to this issue at some other time. But I thank you for your willingness to take seriously my criticism of anarchism, and to devote to it so much of your time and attention.

Contra Anarchism, Part II
posted 12/29/03

If you read closely Professor Roderick Long’s new response to my previous blog entry, "Contra Anarchism," you’ll find that he concedes my central claim about anarchism’s rejection, on principle, of any "final arbiter" of disputes.

Long defines a "final arbiter" as "an agency that refuses to submit its use of force to external adjudication," and which thus "is by definition lawless..." In effect, this means that anarchism equates legal finality with coercive monopoly. Thus, in rejecting the latter, anarchists must reject the former.

There’s a tacit contradiction within Long’s definition, however. "External adjudication" implies some judgment, and some standard for rendering it. So, just who is to supply such "external adjudication" to the actions of anarchism’s many "competing market agencies"--and make that judgment stick--if not some "final arbiter" holding coercive legal power?

Or are we instead to have an infinite regress of competing arbiters and market-driven legal codes, never to reach any final, enforceable resolution? Apparently so. In this respect, anarchism seems to be an invention not so much of noted anti-state theorists, such as Gustave de Molinari or Murray Rothbard, but rather of the ancient philosopher Zeno, who specialized in concocting theoretical paradoxes and infinite regresses that defied all common sense.

Standing at the precipice of this bottomless regress, Long hastily tries to step back. My analysis, he claims, "rests on a misunderstanding of Market Anarchism. [Bidinotto] apparently believes that, under Market Anarchism, no one may be subjected to any legal procedure to which she has not consented. I agree that this would probably be an absurd and unworkable system." Long insists that "...under anarchy there is no ‘unlimited right to secede’ from just legal arrangements; one has instead a limited right to secede, i.e., a right to secede so long as refrains from behaving in rights-violating ways." [emphasis in original]

But this, of course, begs the central question that I had raised against his position: Under anarchism, who would have the final authority to decide what is a violation of rights?

This question-begging becomes even clearer in this passage: "A Market Anarchist can certainly think that some rights-claims are correct and others are mistaken, and that agencies acting on correct views have the moral right to defend their clients, by force if necessary, against agencies acting on mistaken views. In that sense, Market Anarchists have no objection to the idea that actions based on correct views of justice have a right to a monopoly against actions based on a mistaken view of justice." [emphasis in original]  

Consider what this means. Long is postulating competing agencies of force--all operating under different legal codes that codify often-clashing value-systems, and each claiming "the moral right to defend their clients, by force if necessary, against agencies acting on mistaken views." Yet their combat is to occur in the absence of any "final arbiter" which, according to him, "is by definition lawless." (!)
Long acknowledges this thorny little dilemma. "Of course, as Mr. Bidinotto will be quick to point out, in any society there will inevitably be disagreements as to what counts as a ‘rights-violating way.’"

Yes, Mr. Bidinotto is indeed quick to point this out. But Long tries simply to evade his dilemma in this way: "The administrators of the legal system, whether that system is anarchic or minarchic (sic), will periodically disagree as to what rights people have."

But is this parallel truly valid? Note that he speaks of "the legal system." What "legal system"? My whole point was that under anarchism, there would not be "the legal system": there would be a plethora of competing systems, and legal interpreters, and enforcement mechanisms and agents, none having any right to have the final say.

Consider this essential difference. Under a constitutionally limited government, a codified legal arrangement exists to resolve disputes and to enforce their final resolutions, even against dissenters. But under anarchism, no agency’s verdict could ever be rendered with finality, or be enforced, because to anarchists, such an agency would constitute a "coercive monopoly" that "forcibly excludes competitors."

Dr. Long says that he knows of no Market Anarchist who advocates such a view as I have described. Yet one of the intellectual godfathers of modern anarchism, the late Roy Childs, used this very line of argument in his seminal writings in rejecting such "coercive" state powers as arrest and subpoena.

Unlike Childs, who had the good sense to later recant,  contemporary anarchists refuse to acknowledge this logical dilemma. Long, for example, quickly tries to change the subject to the "practical" argument. "The question is: under which social arrangement, anarchy or minarchy (sic), will these disputes be most likely to be resolved peacefully and in a manner favourable to individual liberty?"

With clashing interest groups (religious, political, familial, social, etc.) all having a desire to contract with a "protection agency" that codifies their own values--and with no single agency having the enforceable authority to say, "Your legal appeals are exhausted; this is the final verdict, and this case is now closed"--how could anyone rationally reply to Long’s question with the answer: "Anarchy"?

If Dr. Long and his anarcho-colleagues truly believe that a "’final arbiter’ by definition lawless," then I wish them luck in convincing the world that a free, peaceful, and productive society can exist in the absence of one.

If, on the other hand, they truly "have no objection to the idea that actions based on correct views of justice have a right to a monopoly against actions based on a mistaken view of justice," then what he’s describing and endorsing is not anarchism, but government--that is, a legal agency with the final authority to enforce laws.

But in logic, they simply cannot have it both ways.

As for anarchism--which I believe may now be safely defined as "that social condition arising in the absence of a final legal arbiter of disputes"--let me appropriate Dr. Long's words: "I agree that this would probably be an absurd and unworkable system."

Contra Anarchism, Part III
posted 01/20/04

In light of comments received (and criticisms posted elsewhere) following my previous posts on anarchism, I've concluded that getting most anarchists to actually confront my arguments is as easy as handcuffing oatmeal.

I found it particularly fascinating when, in response to my challenge concerning the inherent moral contradiction within their theory, some anarchists suddenly switched their argument to: "Oh, but government is far worse!" (Writes one: "What I find striking is almost every criticism minarchists hurl against anarchy, applies also to minarchy." Writes another: "Can you seriously believe that private initiation of force would be worse the government initiation of force?")

Let me give this one more try...

The fundamental moral rationale for anarchism is that government inherently entails aggression (the initiation of force), while anarchism does not. On this contention, the anarchists' entire theoretical case against government hinges.

Specifically, their moral claims are that (1) government must compel involuntary taxation to sustain its activities, (2) government initiates force and coercion to outlaw "competing" protection agencies and legal systems, and (3) anarcho-capitalism avoids both moral problems.

Here, very briefly, are my summary replies:

(1) There is no inherent reason why a government that's limited only to bare-bones justice functions will require taxation to exist. The necessary services of a proper government--police, laws, courts, even defense--could be funded voluntarily, generally on a fee-for-service basis, along with (but not limited to) such supplemental non-coercive mechanisms as lotteries, special fund-raisers, and employment of volunteers.

(2) Governments do not need to outlaw "private protection agencies"--and in actuality, they don't. We already have an abundance of private detectives, bounty hunters, security police, mediators, arbitrators, bodyguards, private prisons, etc., all operating legally and in parallel to the governmental system.

However, government does require that all such individuals and agencies conform to, and operate within, a single, overarching framework of law. Why? Because you can't allow "market competition" over the very definitions and meanings of such basic legal principles as "justice," "rights," "aggression," "self-defense," etc.

You can't have a viable, peaceful society with each competing individual, demographic group, street gang, religious faction, et al., deciding, unilaterally and subjectively, who is a "victim" and who a "criminal"--then claiming the "sovereign right" to ignore the contrary legal claims, rules, definitions, principles, and verdicts of everyone else.

And that brings us to...

(3) Contrary to its supporters, anarcho-capitalism embodies an inherent moral and logical contradiction.

Most of the saner anarchist theorists contend that a "just" agency (or even an innocent victim) has the right to forcibly respond to an "aggressor." But in the marketplace, which is governed solely by profit incentives, who will define who is the "aggressor" and who the "victim"? Which "private defense agency" has the final authority to enforce its definitions against those used by other competing agencies--or against individual "hold outs" who disagree--or against all those who proclaim a "sovereign right" to "secede" from that agency's determination?

When push comes to shove--as it often will, anarcho-fantasies to the contrary notwithstanding--the "private defense agency" faces a basic choice. Either (a) it uses coercion to enforce its verdict upon the "hold out" (or upon "competing agencies"), or (b) it fails to enforce its verdicts.

If (a), then the "private defense agency" is coercively "eliminating the competition"--that is, it's behaving as a "legal monopoly on force," in exactly the same way that anarchists find morally intolerable when a government is doing it. In that case, the argument for the moral superiority (let alone moral purity) of anarchism's "private defense agency" collapses.

If (b), however, then the agency's pronouncements are toothless and impotent. In that case, all that anyone need do to evade the private agency's criminal laws, verdicts, and sentences, is simply to ignore them.

Since many anarchists have tried gamely to ignore this key point, let me make it harder for them by repeating it.

It's really either/or. Either "private defense agencies" enforce their laws, or they don't.

If they do enforce their laws, then (by anarcho-definitions) they're "coercively" imposing their private legal systems on their competitors. And there goes their claim to morality.

But if they don't enforce their laws, then criminals will remain free to prey with impunity upon innocent individuals. And there goes the neighborhood.

Anarchists simply cannot tap dance around this dilemma by such subterfuges and dodges as claiming, "Oh, but governments would be far worse than private agencies"—or, "Historically, limited governments never remain 'limited'."

Again, the moral case for anarchism is not that it is less bad than government, or that governments historically have not acted properly. The core anarchist claim is that anarchism is inherently non-aggressive, while government is inherently aggressive.

But both aspects of this claim are utterly and completely false.

There is nothing "immoral" or "aggressive" about an institution having the final authority to render and enforce just verdicts, according to objective procedures and rules of evidence. The fact that verdicts--by their very nature as final legal decisions--must be enforced against "outlaws," is not aggression, but defense: the organized social defense of the rights of innocent individuals against their victimizers. And the fact that final enforcement of legally rendered verdicts necessarily precludes further "competition," or "secession" by dissenters, is not aggression, either:  it's simply recognition of reality. After all, an unenforced rule is not a law, but merely a suggestion.

Experience tells us that criminals do not respond to mere suggestions.

And experience also tells us (at least those of us not mired in rationalistic theorizing) that to protect individual rights, society needs a single agency that retains the ultimate, final power to enforce justice for all.


The Goal of Law: Justice or "Utility"?
posted 01/10/04

(This essay is expanded from a column previously published in The Freeman magazine in August 1995. Apropos of recent commentaries here, I have added material related to the "market anarchist" approach to crime control.)

The core purposes of government are well expressed in the Preamble to the U.S. Constitution: to "establish justice" and to "insure domestic tranquility."

But there's a hierarchy of importance here. By seeking justice, you will necessarily promote domestic tranquility. However, if you seek domestic tranquility alone you won't necessarily promote justice.

How, then, to address crime? Liberals emphasize prevention and rehabilitation. Conservatives, and many free marketers, emphasize deterrence and incapacitation (jail). But all share a utilitarian objective: to advance future public safety by altering the future behavior of the criminal. The problem is that utilitarian objectives can be sought without concern for justice.

For decades, liberals have run our legal system. Renouncing punishment as a proper response to an offender's past crimes, their prevention-and-rehabilitation approach has tried instead to alter his future conduct, for the eventual betterment of society as a whole.

This anti-punitive strategy has obliterated personal responsibility. The felon endures few negative consequences for the damage he does to others. This has led to dual outrages: the unjust neglect of victims, and excessive leniency toward their victimizers.

But under utilitarianism, leniency is not the only option. If public safety is the sole objective, why not try to suppress crime rates by executing--or jailing forever-- every criminal we catch, from jaywalkers to serial killers? Instead of inordinate leniency, why not try unbridled punitivity?

Many conservatives and some free marketers prefer this alternative. Their deterrence-and-incapacitation approach represents the flip side of the same utilitarian coin. It, too, aims solely to alter an offender's future conduct, for the eventual betterment of society as a whole. It, too, severs any clear causal connection between the degree of injury suffered by the innocent, and the degree of punishment imposed on the perpetrator.

Utilitarianism thus has led both the Left and Right to injustice: to disproportionate punishment in relation to the transgression. After all, once illegal acts are de-coupled from a proportionate legal response, the only remaining argument is whether that response should be anemic or draconian.

Utilitarianism also leads both sides to collectivism. What counts to utilitarians, Left or Right, is not justice for individuals, but only lower crime rates for society in general. No longer gauged by the harm inflicted upon individual victims, punishments are instead based on arbitrary predictions of the criminal's future dangerousness to "society." In utilitarian social calculations, there is no place for the anguished human face of an individual crime victim. He or she sinks into a sea of faceless, collective crime statistics.

Do not misunderstand: prevention, rehabilitation, deterrence, and incapacitation are worthwhile ancillary objectives of the criminal law. But they are not primary objectives. They address only general social conditions, so that anonymous citizens of tomorrow may not turn to crime. None of them, though, need be grounded in the principle of making punishments fit past crimes. None of them need be rooted in justice.

The alternative to utilitarianism? A legal system that aims primarily at exacting retribution.

Retribution means administering punishment to a criminal in proportion to how much he has hurt others. I use "retribution" to mean "reflection. " The crook's basic aim is to gain by force something at the expense of someone else. His actions impose damages upon an innocent person. The fundamental goal of a strategy of moral retribution, then, is to reflect those damages back onto the criminal himself.

This policy is both moral and practical. Moral, because it upholds innocent human life, and the just social framework upon which individual survival and well-being depend. Practical, because a policy of reflecting proportionate losses back upon the culprit frustrates and negates his desire, which is to profit at someone else's expense. Retribution means he won't get away with it.

A retributive system would, in fact, incorporate many of the worthy crime-reduction ambitions of the utilitarian. For example, long terms of confinement under harsh conditions, with inmates forced to work and pay restitution to victims and taxpayers, would surely deter more criminals than does our current toothless system. Being locked up would also prevent them from causing ordinary citizens more trouble, and--who knows?--possibly encourage the occasional inmate to rehabilitate himself.

But since we cannot predict a person's future dangerousness, a retributive system would abandon such utilitarian fads as "treatment programs" and "selective incapacitation." A term of confinement would be tied to the seriousness of a convict's offenses--period.

Because retribution entails punishment, it is often criticized as being motivated by a crude thirst for revenge. In fact, a retributive legal system is the antithesis of private revenge, and the basis for the rule of law.

My dictionary says "revenge" is "the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who seem a part of oneself." Of course, revenge-based punishment need not be just: the injured party may retaliate disproportionately to the harm done. By contrast, "retribution" is "just or deserved punishment, often without personal motives, for some evil done."

If we are to have a just and peaceful society, the use of after-the-fact, retaliatory force cannot be left to the arbitrary whims of private victims, each employing subjective criteria of personal injury.

This, incidentally, is a central fallacy of anarchism (aka "anarcho-capitalism," aka "market anarchism"), which theory assumes that individuals retain a "right" to exercise retaliatory force on their own behalf--or to hire some market-driven "private protection agency" to do so.

But market competition, so appropriate for producing widgets, is not an appropriate mechanism for exercising coercion. Precisely to minimize and avoid vengeance, vindictiveness, and vendettas, and the disproportionate punishments to which they lead, a justice system must be based upon retribution, not revenge. And to enforce such distinctions, government is necessary: a constitutionally limited legal arbiter, operating under clear, objective laws, with the ultimate power to distinguish victims from victimizers, aggression from self-defense--and to enforce its verdicts against wrongdoers.

Retribution constitutes the premise that the level of punishment must fit the severity of the crime. This does not mean we need to punish in kind: the law need not literally demand "an eye for an eye," sinking to the specific tactics of the wrongdoer. But it does mean that society should punish in proportion: the law ought to recognize gradations of evil and injury, and respond accordingly.

This brings us to the issue of "restitution"--the idea of compelling a criminal to "restore" his victim through financial compensation. At first glance, the principle of making the criminal pay his victim seems clearly linked to the idea of justice. And obviously, restitution could and should be incorporated within a retribution-based justice system, as part of the range of consequences to be imposed upon the criminal.

But some theorists--notably libertarian "market anarchists," led by economist Bruce Benson--would substitute restitution for retribution. Benson explicitly rejects my call for a legal system based on the principle of proportionate, retributive justice. He argues that a privately-enforced system of restitution would be a superior alternative to any governmental system that endeavors to impose proportionate punishments on criminals.

It is easy to see why such a theory would appeal to anarchists, and why they continue to invest so much effort promoting it. Crime control and national defense constitute the two core rationales for the existence of government. So if anarchists can demonstrate that these two activities can be effectively "privatized," the case for government collapses.

Thus they argue that we should do away with our current criminal justice apparatus, and end the "waste" caused by its "punitive focus." By employing criminals in privately supplied jobs, and attaching their earnings in order to pay back their victims, we could shut down many costly, unnecessary prisons. Criminals themselves would, through their labors, finance their own upkeep, as well as meet  their restitution obligations. This arrangement would also spare taxpayers the injustice of having to support both the government's expensive incarceration apparatus, and the care and feeding of millions of social predators.

On its face, this notion appeals seductively to our sense of frugality and justice. But it is an illusion. In fact, from an economic standpoint, "market anarchists" are prepared simply to write off most of the social costs of crime--and forego most of the expense of apprehending, trying, and extracting restitution from criminals. And from the moral standpoint, they are equally prepared to write off the quest for justice itself.

The reason is obvious. "Market anarchists" wish to privatize all governmental functions, including crime control. In effect, they wish to erase the boundaries between law and economics. However, they know that the pursuit of proportionate justice cannot be done economically. Retribution is not an economic good--there is no profit in it--and to pursue it would require an agency that is not limited by the need to seek or show a profit. In other words, a government.

A single "thought experiment" will illustrate why.

Not long ago--after a murder spree in the Pacific Northwest that lasted decades, and involved the deaths of at least four dozen women--the so-called "Green River Killer" was finally captured, prosecuted, and incarcerated. This episode was incalculably costly: for the victims, for their families and friends, for taxpayers, and for all those millions of women who lived in fear for years and had to take expensive self-protective measures. The manhunt and prosecution alone tied up the time and resources of hundreds of law enforcement officials for many years; the lifetime incarceration of the convicted killer will cost taxpayers even more.

Most of the victims of this sociopath were prostitutes. Because of their social stigma, prostitutes are favorite targets of serial killers: few people care enough to pay attention to the fate of hookers. The same is true of homeless people, eccentric loners, and runaways. People lacking social ties are easier to target and abuse without public outcry. And when murdered, they lack family and friends who might bother to seek justice for them (or "restitution" for themselves). Such forgotten, marginalized individuals also typically lack the means to afford the kind of "private protections" enjoyed by those in better financial circumstances.

So to "market anarchists"--who wish to end all governmental involvement in crime control, and to rely instead solely on private financial restitution--a few questions:

1. What economic incentive or profit would there be for any "private protection agency" to invest vast amounts of time, money, manpower, and other resources in order to investigate, capture, and convict someone like the Green River Killer?

2. Given the social and economic status of his victims, what economic incentive or profit would there be for any "private protection agency" to try to protect them?

3. And even if captured by some private agency, how could the killer ever "pay back" his gargantuan "debts"--and to whom--and in what amounts?

In fact, solely on economic grounds, the relentless and enormously expensive pursuit of this mass murderer made no sense. But on moral grounds, to allow his killing spree to continue was intolerable.

So what happens to society under a "legal system" in which all moral considerations are reduced to the bottom line on a quarterly balance sheet?

(Ironically, these libertarians ignore the views of one of libertarianism's greatest theorists, economist Ludwig von Mises. In his book Bureaucracy, Mises clearly explains the differences between governmental and economic functions--and why the two cannot be conflated. Yet some, who have appropriated Mises' own name to vicariously lend stature to their activities, appear to selectively ignore those of his teachings which do not comport with their anarchist ravings.)

Benson pretends to endorse the concept of "justice" in his restitution scheme, which would allow the victim to decide when he has been adequately "restored." "Full restoration arises when the victim is satisfied, not when his measurable costs have been paid," he argues. [His emphasis]

Just how would this work in practice? "In essence, potential victims are expected to trade for (a) the right to fair (perhaps proportional) restitution and (b) support in the pursuit of justice, in exchange for promises to: (a) forgo proportional punishment if fair restitution is paid, and (b) provide similar support for others. [Emphasis added]

But what, exactly, does he mean by "the pursuit of justice" if a victim is to "forgo proportional punishment"? What conceivable meaning can terms such as "fair" and "justice" have, apart from consequences to the criminal that are proportionate to the harm he does his victim? Put another way: How can a disproportionate response to crime--whether overly lenient, or overly punitive--be either fair or just?

Clearly, Benson's use of such terms is a moral smokescreen to cover his overriding premise: utilitarianism. An economist, he is interested in creating a system not primarily for the crime victim, but "in which the interests of...others in minimizing the costs of violence comes into play." For him, then, the quest for justice is to be subordinated to cost control.

On this point, Benson approvingly cites the ideas of anarchist economist Murray Rothbard, who saw "restitution as the price paid by the offender to persuade the victim not to exact some other form of punishment. Clearly then, the payment must be enough to satisfy the victim's desire for retribution." [His emphasis]

But what is "enough"? That brings us back to two glaring problems with the anarchist system: (1) the subjectivity of allowing individual victims to decide, personally and arbitrarily, the scale of criminal punishments, and (2) the sheer impossibility of meaningfully "restoring" victims of particularly harmful crimes.

In both respects, the Green River case is a perfect example of the pitiful inadequacy of the "market anarchist" approach. The prospect of meaningfully "restoring" the countless victims in this case (and in many other heinous crimes) is ludicrous. (In terms of proportionality, the only just punishment for a murderer is his own death. No, this would not "restore" anyone, since that is an impossibility. But it would reflect the consequences of murder back upon the murderer--and tell all would-be killers that the price they must pay for taking lives is the forfeiture of their own.)

One other point to be made against Benson's proposal is its hypocrisy. Though "market anarchists" like him reject any governmental "final arbiter" of disputes as "coercive," and for "violating rights" of unwilling participants, they display an arrogant eagerness to impose on crime victims their "private systems of conflict resolution" in exactly the same coercive way--all the while pretending that it is an entirely voluntary arrangement.

Recall that he wrote, "Full restoration arises when the victim is satisfied, not when his measurable costs have been paid." However, Benson admits that this "creates incentives for victims to claim more damage than what was actually done," which would encourage "hold outs"--individuals who decide that they had not been sufficiently "restored" by their victimizer. So how would his "voluntary, private restitution system" deal with such recalcitrants?

"...[I]n medieval Iceland, medieval Ireland, Anglo-Saxon England, and elsewhere, a third-party dispute resolution system has always evolved to mediate or arbitrate the victim's claim," he writes. "[S]tandardized rules evolved...regarding appropriate or 'fair' damages for specified offenses in virtually all such arrangements, and...the victim is obliged to accept what the arbitrator/mediator and/or the commonly perceived rules determine to be 'fair' payments for an offense. In other words, in actual restitution-based systems, institutions evolve to prevent victim hold-outs." [Emphasis added]

But what if those ornery "victim hold-outs" defy their "voluntary, private restitution system," and persist in seeking proportional punishment against their victimizers?

What Benson is evading is that, ultimately, those "private institutions" forced unwilling crime victims to accept whatever had been deemed to be "fair" compensation--by employing same kind of coercion for which "market anarchists" damn governments. It is no accident that the anarchists' favorite examples of restitution-based systems are drawn from times and places collectively known by the descriptive term "feudalism."

But unlike those governments that they self-righteously denounce as immoral, "market anarchists"--by their own admission--would make no special efforts to impose consequences on criminals proportionate to the harm they do. Again, their priority is utilitarian "cost control"--not justice.

To repeat: Wherever possible, restitution certainly should be considered as one of many mechanisms by which the law might seek justice for the victim. But restitution is but one means to achieve fairness and justice; and restitution that is not proportionate to the harm done the victim, is neither fair nor just.

As a basis for criminal law, moral retribution is the only premise fully consistent with justice and individualism. With justice--because it implements proportionality in criminal sentencing, fitting the punishment to the crime. With individualism--because it bases punishments on actual harm done to actual individuals. For retribution does not look ahead in time, attempting to  reform "society" in the future: it looks backward in time, trying to set right a past injustice against an individual.

America's Founders made it clear that they saw no clash between the moral end of justice, and the practical ends of insuring domestic tranquility. A valid conception of retribution, of "just deserts," can incorporate and advance many of the practical purposes advanced by utilitarians.

But it can also provide those purposes the crucial moral grounding and justification that they have never had.

Copyright 2004 by Robert James Bidinotto. All rights reserved.

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