fssay CoIIcction - Discussions on AItcrnativcs to Top-Down Provision of Protcction

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PROPERTY RIGHTS IN CELTIC IRISH LAW*
JOSEPH R. PEDEN
Department of History, Baruch College of the City University of New York
"The laws which the Irish use are detestable to God and so contrary to all laws that they ought not
to be called laws. . ."
Edward l of England (1277)
"Leviathan in swaddling clothes"
D. A. Binchy on the lrish TuoN,
INTRODUCTION
It is impossible at the present time to present
a systematic, coherent description of the
ancient Irish law of property. The reason
is that a considerable portion of the sources
have not been published in modern scien-
tific textual editions and translations. The
principal sources used repeatedly by historians
in the 19th and early 20th centuries are the
multi-volumed editions of the old Irish law
tracts edited and translated by Eugene O'Curry
and John O'Donovan and published posthu-
mously by other editors between 1864 and 1901.
While both these pioneer scholars were compe-
tent in their understanding of Middle and early
Modern Irish, the language of the glosses and
commentaries, neither was able to cope too
successfully with the archaic and very technical
terminology of the Early lrish texts of the law-
the oldest and most valuable strata for under-
standing Irish legal concepts and principles.
The later editors of the O'Curry. - O'Donovan
transcriptions and translation were, with one
exception, almost wholly ignorant of the Irish
language, and the result was that their footnotes
were misleading and inaccurate, their intro-
ductory essays teemed with misinterpretations,
and the printed texts themselves were full of
glaring errors.[ll
Thi s paper was given at a symposium on "The Origins and
Development of Property Rights" sponsored by the Institute
for Humane Studies at the University of San Francisco,
17-20January, 1973.
Scientific study of the Irish law tracts had to
await the development of Celtic philology.
This was begun in the early 20th century through
the interest of the German Celticist Rudolph
Thurneysen, the English linguist Charles
Plummer and the Irish historian Eoin Mac-
Neill. These three undertook the first really
competent study of the difficult Old Irish texts,
and more importantly, they trained and en-
couraged younger scholars to pursue the very
difficult linguistic, historical and juristic studies
which would prepare them for further study of
the law tracts.
Unfortunately, many historians not specializ-
ing in the study of the ancient Irish law tracts
have been unaware of the textual inaccuracies
of the O'Curry - O'Donovan translations and
have continued to incorporate their older un-
scientific work, and that of their editors, into
their own work. For example, one of the most
commonly cited sources for early Irish history
is Patrick Joyce's A Social History of Ancient
Ireland, first published in 1906 and republished
in 1913 and again as late as 1968. This work
is notoriously inaccurate; it has no sense of the
fact that a chronology of at least 1000 years is
being covered during which some changes in
social and legal institutions took place. Joyce's
book was used between 1914 - 1918 when the
great French historian P. Boissonade was pre-
paring his epochal history of social life and
work in medieval Europe. Thus Boissonade
speaks of "the soil of Ireland (belonging) to
184 tribes or clans. . . .the clans held the land in
82 JOSEPH R. PEDEN
common. . . .no man held individual property
save his household goods, and each held only
the right of usufruct over his strip of tribal
domain. . . in each district of Ireland the free
population lived communistically in immense
wooden buildings . . . . they lived and fed in
common, seated on long benches, and all the
families of the district slept there upon beds
of reeds. . .". One can see immediately that the
writer is using the words "tribe", "clan",
"tribal domain", "district" and "population':
equivocally, leading to great confusion. Almost
every part of this passage is incorrect or very
misleading.[3]
We might ignore Boissonade's errors except
they are typical of many other secondary
sources including the Cambridge Economic
History, whose editor Eileen Power, incidentally,
translated Boissonade's work into English in
1927. Worse yet, this translation was reprinted
as a Harper Torchbook in 1964 and circulates
widely in American colleges, perpetuating
errors dating back more than 60 years.
Even when native Irish authors like lawyer
Daniel Coghlan attempted to write a systematic
description of land law under the ancient law
tracts, his work was described by a scholarly
reviewer as "inaccurate and unreliable, of little
~al ue' ' . [ ~1 Despite nearly 50 years of persistent
and rewarding scientific study of the Irish law
tracts by professionally competent philologists
and jurist-historians, a recent historical work
appeared which ignores all that has been pub-
lished on the'problem of Iristi land law in the
ancient law tracts, and in a chapter entitled
"Celtic Communism" repeats all the inaccura-
cies of Joyce[Sl
Under these circumstances, conscious of my
own lack of knowledge of the Irish language,
and keenly aware of the shoals that await the
historian who is not expert in this highly
specialized field of study, I have deliberately
avoided all reliance upon authorities who are
no! themselves trained in Irish language and
history. 1 am not presenting a coherent syste-
matic review of the lrish law of property; I am
presenting a review of what the most compe-
tent Irish scholars of the last half century have
discovered since they applied modern scientific
philological and historical standards of criti-
cism to the ancient Irish law tracts.
My survey of the literature indicaies that
(1) private ownership of property played a
crucial and essential role in the legal and social'
institutions of ancient Irish society; (2) that the
Irish law as developed by the professional
jurists-the brehons-outside the institutions
of the State, was able to evolve an extremely
sophisticated and flexible legal respqnse t o
changing social and cultural conditions while
preserving principles of equity and the pro-
tection of property rights; (3) that this flexibility
and development can be best seen in the develop-
ment of the legal capacity and rights of women
and in the role of the Church in assimilating t o
native Irish institutions and law; (4) that the
English invasion, conquest and colonization in
Ireland resulted in the gradual imposition of
English feudal concepts and common law which
were incompatible with the principles of Irish
law, and resulted in the wholesale destruction
of the property rights of the Irish Church and
the lrish people.
Irish law is almost wholly the produet of a
professional class of jurists called brithim or
brehons. Originally the Druids and later the
filid or poets were the keepers of the law, but
by historic times jurisprudence was the profes-
sional specialization of the brehons who often
were members of hereditary brehonic families
and enjoyed a social and legal status just below
that of the kings. The brehons survived among
the native lrish until the very end of a free Irish
society in the early 17th century. They were
particularly marked for persecution, along with
the poets and historians, by the English authori-
ties. The statutes of Kilkenny (1366) specifically
forbade the English from resorting to the
brehon's law, but they were still being mentioned
in English documents of the early 17th ceniury.l61
The absence from the function of law-making
of the Irish kings may seem startling. But Irish
kings were not legisiators nor were they normally
involved in the adjudication of disputes unless
requested to do so by the litigants. A king was
not a sovereign; he himself could be sued and a
83 PROPERTY RIGHTS IN CELTIC IRISH LAW
special brehon was assigned to hear cases to
which the king was a party. He was subject to
the law as any other freeman. The Irish polity,
the tuath, was, one distinguished modem scholar
put it, "the state in swaddling clothes". It exis-
ted only in "embryo". "There was no legis-
lature, no bailiffs or police, no public enforce-
ment of justice . . . there was no trace of State-
administered justice". Certain mythological
kings like Cormac mac Airt were reputed to be
Iawgivms and judges, but turn out to be euheme-
rized Celtic deities. When the kings appear in the
enforcement of justice, they do so through the
system of suretyship which was utilized to
guarantee the enforcement of contracts and the
decisions of the brehon's courts. Or they appear
as representatives of the assembly of freemen to
contract on their behalf with other fuafha or
churchmen. Irish law is essentially brehon's
law-and the absence of the State in its creation
and development is one of the chief reasons for
its importance as an object of our scrutiny.171
The bulk of the lrish law tracts were com-
mitted to writing in the late seventh and early
eighth centuries, and though influenced some-
what by the impact of Christianity, they are
basically reflective of the social and legal prin-
ciples, practices and procedures of pagan Irish
society. In the early ninth century, the oldest
texts were being glossed because the original
meaning was no longer certain, or practice had
in fact undergone developmental change. By
the 10th century elaborate commentaries were
being added which indicate that the texts were
either so obscure to the new generation as to
be inexplicable, or change had become so
marked that the commentaries often contradict
the text itself. Part of this confusion was due to
the very archaic and technical language of the
earliest texts and the subsequent change in the
Irish language from what we call now Old Irish
to Middle Irish. If we recall the marked dif-
ferences between the English of Chaucer and
that of Shakespeare, we will understand the
difficulties of the brehon jurists over a compar-
able period of time.181
To complicate matters further, the earliest
Irish texts reflect the existence of several dif-
ferent schools of law, each producing its own
particular code or tract. While all the tracts
are recognizably Irish in character, they do
reflect local, perhaps regional differences; if
the evidence were fuller, several local schools
might be identified. As of now it appears that
a northern and a southern regional affinity
can be detected. The fact that in later historical
times certain families of brehons were associated
with specific tuatha or regions suggests that local
variations in specific procedures and penalties
were almost inevitable. But from the tenth
century, the legal fiction arose that the lrish law
was a unity and all contradictions were to be
explained away by the commentaries. The
multiple and competing law systems of the early
period were now subjected to homogenization
to produce what was considered to be a uni-
form law for the whole island. And this fiction,
like the equally unhistorical claim that there
was a single High-King of Ireland-the King
asseeiated with Tara-retained its hold on
historians down to the application of modern
textual criticism in the 20th cent ~ry. [~l
The conversion of the Irish to Christianity
begun in the fifth century was bound to affect
profoundly Irish life and institutions. The
Christian church was already very Romanized
in its institutional and cultural conceptions. It
was urban-oriented and, thanks to St. Augustine,
had reconciled itself to the Roman conception
of the State as part of the natural (if sinful)
order of the world. In Ireland Romanized
Christians found a wholly rural-oriented society
with a barely embryonic conception ~f the State,
and a well-develope4 legal tradition in which
law making was the special function of essen-
tially private persons-a professional class of
jurisconsults and arbitrators known as the
brehons. Law and order, and the adjustment of
conflicting interests, were achieved through the
giving of sureties rather than State-monopolized
coercion. The Church could not depend upon
the lrish kings to compel their people to convert
to Christianity nor could they use the State to
impose Christian law on an unwilling popu-
lation. Significantly, the conversion of the
lrish was undertaken without State-directed
compulsion and not a single martyrdom is
associated with the Church's triumphant
success.f'0l
Without the instrumentality of the State to
84 JOSEPH R
. PEDEN
enforce its commands, the Church's impact
on lrish law was still very weak in the sixth
century; canonical texts of this period forbid
Christians to make use of the brehon's court
against one another. They are to resort to the
clergy to arbitrate among them as in the pre-
Constantinian Church. But the collapse of the
Roman empire in the West, and the isolation
from Roman influences, coupled with the rise
of a wholly native clergy during the period,
forced the Irish Church to integrate itself more
fully into the native lrish institutions and cul-
ture.[lll
In legal tracts dating from the late seventh
and early eighth centuries, the clergy are recog-
nized in their seven ranks, with appropriate
honor-prices, and other rights and obligations
under the law. The right of free men to be-
queath property to the Church under certain
conditions was recognized, and the right of
women to give gifts was also approved by the
jurists. St. Patrick had mentioned the practice
of newly baptized women placing their gold
bracelets upon the altar as a gift, and his prac-
tice of returning them. He may have done so
to avoid litigation as to their right to make such
a gift at this early period when their legal
capacity was dubious. The law also ruled out
deathbed bequests to the Church as invalid due
to possible mental impairment, and the laws on
marriage and other sexual relations remained
wholly pagan.ll21
The failure of the Church to impose its own
will upon the Irish law is best appreciated if one
considers the fact that the Church was com-
pelled to create its own legal codes in which a
wide variety of criminal and moral practices
were outlawed and appropriate penalties
assigned. The so-called penitentials of the Irish
Church were later carried by Irish missionaries
to the continent and became a vital part of the
judicial structure of the entire Western Chris-
tian Church. Penalties ranged from set periods
of prayer, fasting, abstinence, pilgrimage,
hermitage, exclusion from the sacraments, and
other spiritual acts, to a fixed scale of monetary
commutations of these penalties. The influence
of Irish secular law, with its dependence upon
monetary compensation for offenses under
law, seems clear.[l3l
One way in which the Church did inflbence
lrish law was by seeking to have the Irt$h:kings
and assemblies accept a specific writtencqde of
law composed by an outstanding ecclesiastic,
The Annals of Ulster for A.D. 778 recold that
Bresal, Abbot of Iona, and Dunnchad, King of
Southern O'Neill "confederacy", had agreed
to accept the laws of St. Columcille, founder
of Iona, as binding upon their peoples. This
was something akin to a treaty or compact
governing internal and external relations. The
compact publicly committed the people re-
presented h&e by their king to obey the new
law. This is the closest that the Irish got to
legislating a system of law. The law codes,
always attributed to some saint, represent the
intrusion of Christian moral practices into the
customary law of the land-the brehons' law.
They were largely concerned with ensuring
better protection for the persons and property
of the clergy, their households, clients, servants,
tenants, and ordinary women and children.
There were also efforts to impose Sabbath laws.
But these new ecclesiastic-inspired codes were
thoroughly Irish in structure and principles. As
Kathleen Hughes has put it: "The general effect
of Christianity upon Irish law was to modify
it without dislocating it; its rigidity was reduced
and the result was a strengthening of native
instit~tions".['~l
The study of the law texts and tbe canonlcar
texts has suggested to at least one historian that
the existence of two competing law systems in
medieval Gaelic Ireland reflected a more subtle
tendency in Irish jurisprudence and practice :o
conceive of Ecclesio and Tuath as separate and
alternate. entities with each having its own qghts,
and relations between' the two governed by
contract. For example, a study of the develop-
ment of the Church's manner of holding land
suggests that it seems to have controlled some
of its property as a sovereign entity-outside
and apart from the authority of any king and
the jurisdiction of any t wt h. Some churches
were very clearly held under lay proprietorship-
the proprietor being a layman witb the right of
patronage. In other cases the l a d was given
away without any restrictions at all-public
or private-into absolute allodial ownership by
an ecclesiatical corporation. In some cases
85 PROPERTY RIGHTS IN CELTIC IRISH LAW
familial land was donated with the consent of
all the kindred but the abbot or cleric holding
the benefice had to be chosen from the kindred
of the donor. For example, ten of the first eleven
Abbots of Iona were kinsmen of the founder,
St. Columcille. Lastly, royal land-land which
was attached to the public office of the king-
ship-was donated to the church with the con-
sent of the assembly of the Tuath in return for
the clergy performing spiritual offices without
fee among the people. These lands were
apparently freed of all public obligations- to
billet troops, answer a call to arms or give tri-
bute to the king.I15]
The Church continually pressed to free itself
of all obligations to lay owners or public
authorities. This effort accelerated during the
11th and early 12th century as part of the
Gregorian reform movement and the investiture
controversy. But as early as the 6th century,
many monasteries were operating as virtual
ecclesiastical tuatha ruled by their abbots.
Daughter houses were established which recog-
nized the abbot of the founding house as their
"overlord" and the many houses and proper-
ties, tenants, clients and unfree dependents
located over wide areas of the British isles and
Ireland appear to be ecclesiastical principalities
dealing with the secular tuatha as equals rather
than subjects. By the early seventh century the
Archbishopric of. Armagh heads a federation
of churches spread across the north and west of
Ireland, while the bishoprics of Kildare, and
probably Cork and Emly in the south, are
following suit. Armagh claimed overlordship
over any church that was free of obligations t o
an existing overlord-be he king, lay proprietor
or abbot. By the 8th century the bishops of
Armagh and Kildare, and the Abbots of lona,
Clonmacnois and Bangor were rulers over vast
ecclesiastical principalities free of the rule of
any secular authority.1'61
This situation continued in those parts of
Ireland not subjected to English rule. For
example, when the native Irish archbishop of
Armagh, Nicholas mac Moel Iosa, received the
notorious papal bull Clericis laicos asserting the
most extreme papal claims to immunity from
State control (issued by Boniface VIlI in 12%),
he called a meeting of the kings of all the tuatha
within his jurisdiction, explained the impli-
cations of the papal bull, and askc4 for their
oaths of affirmation. Apparently without any
great conflict, they agreed to respect the
immunity of the clergy, their property, tenants
and artisans from any lay impositions -fiscal,
alimentary or servile, and undertook to respect
the right of the clergy to have all cases involving
their delicts, debts or contracts heard in the
bishop's court rather than the brehon's. They
further undertook the obligation of acting as
sureties to the church for the apprehension of
anyone in their jurisdiction who failed to
appear before the episcopal cour,ts.~'71
While the Archbishop had no difficulty in
getting the Irish kings to recognize the immuni-
ties of the Church, he ran into grave difficulties
with the English king Edward I whose rule ex-
tended over parts of the province of Armagh.
He was accused by Edward's officials in Ireland
of wholesale usurpation of the King's rights
over the Irish Church. He had appropriated to
himself the custody of the temporalities-pro-
perties-of vacant bishoprics and abbacies; he
had consecrated new prelates for these offices
without the king's license; he had heard pleas
in his court that by right belonged to the King's
court, to the detriment of the royal prerogatives
and revenues. Archbishop Nicholas defended
himself by arguing that he had acted in accor-
dance with the ancient rights (under Irish law)
of his Church as in the days before the conquest,
rights which the English king Henry I1 had
sworn to uphold. Edward replied to that argu-
ment by imposing a heavy fine and ordering
that his officials make sure no Irishman ever
was elected again as Archbishop of Armagh.['*I
Tws is but one clear instance ip which the
property rights and the freedom the Irish church
achieved under Irish law were to be radically
reduced under the impact of English feudal and
common law traditions. By the 14th century, the
antagonism of the two peoples was so great that
the English government forbade any religious
order, monastery, collegiate church or cathedral
to admit to its membership anyone of Irish
nationality. Moreover, anyone who was Irish
presenting himself for ordination to clerical
orders in a diocese under the English king's
jurisidiction was presumed to "have lived con-
86 JOSEPH R.PEDEN
tinuousiy among evil people and to come from
an evil background", and was to be denied
sacred orders. Thus were the native Irish
dispossessed of their own churches in their own
land to give places to foreign invaders.I191
I1
us now examine in some detail the charac-
ter of Irish law and the role of in
legal and social institutions.
Irish society was a precisely stratified, class-
conscioussociety in which rank had
legal and economic foundations, The earliest
law tracts divide the population into two legal
classes: the free and the unfree. The free are
the kings, nobles and commoners-all those
who own land and thus enjoy the franchise, a
place in the assembly of ihe ruorh, and have a
legal capacity to make contracts in their own
right or through their father, husband or male
kinsmen. Possibly under the influence of the
Church, which had seven orders of clergy, the
jurists subdivided the kings into three grades,
the nobles and commoners into seven each.
The grade or rank of a man was determined
by the amount of property he owned and the
number of clients he had. Since the clients
varied according to his available wealth (see
below), wealth was the principal basis for a
man's rank in Irish society. The unfree were
those who did not own land, thus did not have
the franchise, and were usually household
retainers or tenants at will of a landowner.
What is somewhat surprising is the fact that
these ranks and categories were not fiied. The
law texts say that "the free may sit in the seat of
the unfree" and "the unfree may sit in the seat
of the free". "Everyone may become free by
his wealth and unfree by his lips". The free
who become unfree are those who sell all their
land or rights or body in service t o another
(slavery). The unfree in the seat of the free are
those who buy land or the right to the franchise
by their art (skilled craftsmen), their talent
(bards), or by husbandry (tenants at will). This .
social mobility is reflected in the legal maxim:
A man is better than his birth. The only class
excluded permanently from recovering their
free status were those who had forfeited their
lives for some crime, but were ransomed and
kept as servile tenants by some freeman, But
generally, wealth, talent or skilled oraftsman-
ship were enough to make free status possible.
In effect, economic self-sufficiency was the
hall-mark of free status.(20l
While some historians have been dubious as
to the reality of the fine distinctions in grade or
rank which the law tracts reveal when applied
to the actualities of everyday life, 1 do not
share their view. Admittedly medieval intellec-
tuals in general, and the Irish jurists in parti-
cular, show a marked predilection for making
numerically ordered distinctions in all sorts of
situations. But it must be remembered here
that the assessment of a man's property-its
character and value (land, chattels, clients)-
Was absolutely necessary if he was to participate
~n the very elaborate system of suretyship which
was the basic mechanism by which all law was
enforced. And it also was vital to assess his
honor-price-another essential part of the Irish
system of
The honor-price (dire or enclann) was the
payment due to any free man if his honor or
rights were injured or impugned in any fashion
by another person. It might be invoked for the
violation of any contract, any act of violence to
his person or that of his dependents, any tres-
pass on his rights or property, or even a mali-
cious use of "satire" without cause which
damaged his reputation (usually the work of a
bard or poet). In the oldest texts, honor-price
varied in amount according to the rank of the
victim, and the penalty for the offense varied,
being fiied according to the seriousness of the
offense at the amount of his honor-price or
some multiple or fraction thereof. At a later
stage of legal development, the jurists estab-
lished fiied penalties for specific crimes and
enforced them equally regardless of the rank
of the victim. But in addition, the offender still
had to pay the honor-price appropriate to the
victim's rank.
Honor price was also essential in the work-
ings of the surety system by which means all
judgments of the brehons' courts were en-
forced. Since law enforcement was not a func-
87 PROPERTY RIGHTS IN CELTIC IRISH LAW
tion of the state or king in the Irish tuath, it
was entirely dependent upon each party in an
action or suit providing himself with sureties
who would guarantee that the judgment of the
brehon's court would be honored. If a person
was about to bring suit, he sought sureties to
help hiin persuading the defendant to submit
to peaceful adjudication of the dispute; this
might involve applying the law of distraint in
which the plaintiff seized some movable pro-
perty of the defendant and impounded it under
lawful procedures until the defendant gave
surety that he would submit to adjudication. If
he refused to do so, the community would con-
sider him an outlaw-and he and his property
would lose the protection of the law.iZzl
There were three kinds of surety: first, a
surety might offer the plaintiff to join him in
enforcing his claim against the defendant.
Since Irish law did not distinguish between
tort and criminal actions, all crimes or suits
were punished by payment of fines and honor-
prices. Thus the plaintiff-if he won his suit-
became a creditor, the defendant became a
debtor. The surety guaranteed payment by
pledging his own honor-price. A second form
of surety (aitire) had the surety pledge his per-
son and freedom as a guarantee. If the party
defaulted on his obligations, the surety had to
surrender himself to the aggrieved party and
then begin to negotiate his freedom by paying
the debt and also the honor-price of the creditor
for this new injury. Once freed he could of
course try to recover his losses from the de-
faulter.[231 A third type of surety (ruth) guaran-
teed that in the event the debtor defaulted the
creditor would be paid out of the surety's own
property. If the surety was subjected to loss,
the debtor must pay his honor-price. If he de-
faulted, his honor-price was forfeited and he
lost his legal status.
Because of the vital role that it played in the
surety system, honor-price was one of the chief
attributes of a person's rank and only men of
full legal capacity possessed it in their own
right. Wives, children and sons living in their
father's house were protected by the honor-
price of their husbands, fathers or male guar-
dians. Sureties and compurgators-persons
who gave oaths as to the truthfulness of con-
testants in a legal dispute-had to have their
honor-price assessed because they were for-
bidden to pledge payment of any debt beyond
the value of their honor-price which was, of
course, assessed on the basis of their rank
which was in its turn based upon an assess-
ment of their wealth. Thus ownership of
property in all its forms was the basis of a
man's legal status and marked the extent of his
participation in and protect;on within the legal
system.[231
The lrish law recognized three distinct kinds
of contract: sochor, dochor and michor. A
sochor was a "good contract" which had three
qualities: it was a contract between two or more
free men; these free men were legally capable to
act (not insane or minors or otherwise restricted
in legal capacity); and lastly, the objects ex-
changed were of "equal profitableness". In
contrast is the dochor or "bad contract" in
which the first two qualities are present, but the
third is lacking. Here the seller has suffered
some loss of value in the exchange. What
appears to be present here is the intrusion of the
Christian concept of the "just price", perhaps
an early influence of the Church upon the law.
But what is most significant is that, while
failure to exchange at a just price renders a
contract "bad", it does not render it invalid.
An invalid contract-called michor-is one
which is illicit or void because one or more of
the parties had not the legal capacity to act in
his own right or was not a free man. The moral
dubiousness of the dochor is not the issue and
has no direct legal impact. However, as we
shall see, the legal distinction did have legal im-
pact in cases where women executed con-
tracts in the absence of their husbands, or men
without the consent of their wives in some in-
stances.[241
As in so many ancient societies, in Ireland
many economic transactions took place under
the guise of a contractual relationship known as
clientship. In lrish law, clientship was of two
distinct types-free and base, distinguished
from one another by the type of services re-
quired by each. Free clientship (soer-celsine)
was the grant by a king or noble to another free
man of livestock in return for the payment of a
"rent" of '/, of the value of the livestock to be
88 JOSEPH R. PEDEN
paid annually for 7 years. At the end of that
time, the client bccame sole and absolute owner
of the livestock and his clientship terminated.
AU classes of free men were eligible to become
free clients without any loss of legal status,
franchise or honor-price. The only other obli-
gations were that the free client did homage to
his "lord" or creditor by standing in his pre-
sence and by attending hi on certain cere-
monial occasions. Since a noble's or a king's
rank depended in part on the number of clients
that he had attending him, the Irish upper
classes invested a large part of their assets in
acquiring as many clients as they could afford.
Thisgave them inc~easedsocial and legal status,
and probably increased their political power in
the assemblies as well. It also raised the value
of their honor-price, thereby increasing tbeir
capacity to act as sureties and compurgators.
The base client was also a free man, an owner
of some land, but usually a commoner. He
received a grant of either stock or land from a
person of higher rank in return for the payment
of an annual rent in kind (a food-rent) pro-
portionate in value to the value of the borrowed
land or stock. In addition he owed specified
labor services to his "lord" or creditor, and this
is why his clientship was "base".
The Irish apparently considered that laboring
for another man somehow impugned one's
honor because the "lord" had to pay the base
client upon the initiation of the contract the
value of his honor-price. In return the "lord"
was entitled to receive a percentage of the base
client's honor-price and other compensation
paid to him if he sustained any injury or vio-
lence resulting in a legal settlement. The base
client thus remained a free man and could ter-
minate his base clientship at any time upon
returning the "lord's" property and compen-
sating him for any possible losses.[25]
The Anglo-Norman invasion of Ireland in
the late 12th century and the subsequent partial
conquest of its territory was to have a detri-
mental effect upon the status and legal rights
of the Irish clients, particularly on those who
were base. Neither form of Irish clientship was
equivalent to Anglo-Norman vassalage. Free
clientship was essentially a form of commercial
contract in which the purchaser bought live-
stock on a deferred time payment system. He
remained free in legal status and the contract
was terminable at the end of seven years or even
earlier if paid in full. No one could mistake this
for a feudal bond of vassalage or a fief despite
the free client's minimal social obligations to his
creditor. But base clientship, where manual
labor services were required along with an
annual food-rent, was more easily misunderstood
by the Anglo-Normans as equivalent to English
villeinage or serfdom.IZ6]
In Irish law among the ranks of the unfree
were a specific class-the sen-chleithe-who are
the legal equivalent of the English villeins.
They are hereditary holders of a parcel of land
in return for uncertain service and pass as appw-
tenances of the land should it be alienated or
sold. They are included as part of the owner's
property for purposes of assessing his honor-
price drank. Another class of the unfree
are the fuidir who are not "villeins' in Idsh law
but are tenants at will bound to uncertain ser-
vices. However, they are free to move or aban-
don their holding upon due notice to their land-
lord, and may rise in social status or fall to the
rank of sen-chleithe if they have had ancestors
living on the same land for nine generations-
an unlikely situation.l271
With the English occupation both the fuidir
and the base clients were reduced t o serfdom
under English law. They are called betaghs or
betagius in the English documents from the
12th century onwards. The fuidir lost the right
to leave his holding and the possibility of rising
in status. The base client lost his personal status
as a free man, his right to the ownership of his
own land and moveable property, and the right
to bequeath his property to the Church or
others. Even the free clients seem to have suf-
fered some loss in status as the distinction
between them and the base clients was often
ignored by the English in their efforts to seize
the properties of the conquered Irish. Thus the
English conquest meant a vast displacement
and dispossession, and loss of status for most
of the Irish landholding classes and tenantry as
well.[28]
As we have already indicated, one of the
most persistent myths of Irish history is the
belief that a form of primitive communism
89
PROPERTY RIGHTS IN CELTIC IRISH LAW
prevailed in landholding. Due in part to the
failure of the translators and editors of the law
tracts published in the 19th century to use such
words as "tribe", "clan" and "sept" precisely,
later writers, particularly those dependent upon
Patrick Joyce's work as a source, confused the
lands of the tuath with those of thefhe or family.
In addition, Irish law recognized joint-owner-
ship and co-tenancy as well as co-operative
work ventures. All of these have been vaguely
described in different places as "communal
ownership" or communism.
In a very detailed critique of Joyce's work,
Eoin MacNeill, one of the first professional
historians who was also able to read and inter-
pret the law tracts from their manuscripts
with competency in Old Irish, pointed out that
there was no evidence whatever to suggest that
the lands of the tuath were held in common or
periodically redistributed. Quoting Sir Henry
Maine who had admitted that "all the Brehon
writers seem to have had a bias towards private
as distinguished from collective ownership",
MacNeill wryly comments that it was hardly a
bias-it was a reality. It was a myth of collective
ownership that was the product of bias. There
are only two kinds of land which seem to have
been viewed as being without owners: mountain
peaks and woodlands or forests which were not
partitioned or appropriated. There was also the
land that belonged to the king by reason of his
office. But since the kingship was normally
hereditary within a kindred or derbfne-four
generations of males of which one had been a
reigning king-even the royal domains had a
semi-private character as they circulated in
usufruct within the royal dynasty.091
The English government encouraged Irish
rulers to surrender their tuath and its landed
territory to the English Crown which would
then re-grant it in feudal tenure to the Irish
king who thenceforth would be a feudal vassal.
The result of such a transaction in effect would
be to transfer ownership of all lands from the
allodial Irish owners to the English king and
then as a fief to the new Irish vassal-dispos-
sessing the people to the benefit of the Crown
and the Irish former king. Needless to say,
such Irish kings were swiftly repudiated by
their people.IM1
Ownership of property in Irelana was gene-
rally absolute; but some instances of limitations
were recognized in the law tracts. For example,
there were three instances in which the rights of
ownership were subject to adversative prescrip-
tion. If two successive generations of land-
owners failed to challenge the right of a mill-
race to cross their land without receiving some
form of compensation for the infringement, the
millrace became the absolute property of the
mill owner(s). The same rule applied to the
construction of a fishing weir across a stream or
estuary and the right of way of a bridge or
plank roadway across a stream or bog. Also,
the law recognized that certain personal "neces-
sities" suspended private property rights in
particular instances: a man might take a single
salmon from a stream or a single drawing of a
net from a river or lake without infringing on
the property rights of the owners; he could
also cut a sapling for a riding crop or the shaft
of a spear or commandeer a wagon to carry
home a corpse. The gathering of nuts or kind-
ling from woodlands was free to all equally,
provided the woodlands were not partitioned or
appropriated for private use. Seaweed could be
taken also under the same restrictions. As for
wild beasts, they belonged to whoever killed
them.l3'1
A very common form of property holding
was joint-tenancy. This was especially common
where the kindred were acting as a close eco-
nomic unit in livestock raising or tilling the soil.
In a pastoral enterprise where summer and
winter pasture were needed and large herds of
cattle, sheep or kine required only a few persons
to attend them in the fields, co-tenancy was a
reasonable solution involving both division of
labor and maximum utilization of land. The
Irish took a dim view of trespassing and neigh-
bors were required to give each other sureties
against trespass; in co-tenancy of land, the
repair and maintenance of fencing was the
responsibility of each co-tenant along the outer
boundary of his own land; failure t o keep it
properly fenced compelled himto pay a fine to
his co-tenants, and he probably forfeited his
surety to his neighbor for trespass as well.
Each tenant was required to supply some tool
which was stored in a common place; each
90 JOSEPH R.PEDEN
morning he was required to appear at a fixed
time when the day's work on the fencing would
begin. If late, another might take his tool for
the day and he paid a fine. The co-tenants also
took turns in guarding their livestock. To
protect themselves against suit for negligtnce,
the co-herders set limits to their personal
liability before witnesses and gave sureties to
each other. The losses due to attacks by wolves,
gorings, and wanderings into bogs were pro-
vided against by these contracts and individual
responsibility for loss thus established.[3Zl
A form of joint-ownership was used in the
constmction of mills. The owners were usually
monasteries, kindred groups or individual joint-
owners. If a mill was wholly within the lands
of a single landowner that would obviate the
need for joint-ownership. But frequently the
water for the millrace and pond had t o be diver-
ted from a distant lake or stream. This meant
that the owners of the source of the water, and
the landowners through whose land the millrace
ran, had to be compensated for the infringe-
ment of their property rights. This might be
done by payment of a single sum to the owners
of the land or water resource, or else recog-
nizing them as joint-owners with specific rights
of use of the mill for set periods in varying pro-
portions. The owner of the mill and pond and
the owner of the source of the waters got the
largest share, with the landowners of the land
through which the millrace passed getting pro-
portionately less. (It was noted elsewhere that
the landowners had to allow the millrace and
could lose their rights to compensation after
two generations).['fl
The climate of Ireland is such that drainage is
a major problem. Thus ditches abound for
drawing off water, and for keeping cattle im-
pounded. The occurrence of drownings was
apparently so common that the jurists waived
the liability of owners for drownings in ditches,
or other accidental deaths in ditches sur-
rounding cattle pens,-homesteads, churches,
or grave mounds, or in millraces and ponds,
peat bogs or from footbridges. But if an
accident was due to the failure to fence one's
fields, the owner was liable to be fix~ed.[)~l
One of the more difficult problems in study-
ing the Irish law of land ownership is the pro-
perty of a family or kindred group. MacNeill
admits that here we may have "communal"
ownership. By this he means that certain land
cannot be sold without the consent of the derb-
fine-all males descended from a common
great-grandfather to the thud generation. Thus
this group is also the normal range of inheritors
and also entitled to the compensation for
homicide for any of its members. While each
member held and disposed of the fruits of his
own parcel of land, some residual control was
exercised by the kinsmen. When the land was
rdstnbuted is not clear, but some division must
have taken place when a young man came of
age, perhaps his share of his father's patrimony
was transferred at this time. If he died without
sons, it probably was redivided among his
brothers. Sons were the normal and equal
heirs of their fathers, and their mothers.t35l
Whether land was distributed in proportional
share upon the death of any kinsman amongst
all the kinsmen seems dubious. The fractionali-
zation would seem very much against the
interest of orderly management. Some writers
imply this was the case, but may have been
misled by a law tract dealing with the division
of compensation due a dead man levied on his
murderer by an armed raid into another tuath.
In this tract, the deceased's compensation is
obviously movable-it had been captured and
taken from another territory. Also, it was
divided first into three thirds-one went to
the king and nobles of every grade above the
deceased's; a second third to the members of
the hosting other than the above; and the last
third to the deceased's kindred. This last third
was then divided by a series of apportiohments
by fractions among the kinsmen according to
the closeness of their relationship to the dead
man. This legal rule for a specific typeof blood-
letting, should not be assumed to be the norm
for the division of ordinary property. Thus the
actual distribution of landed property may
well have been confined normally to the
immediate male issue, while the more distant
kinsmen retained residual rights of inheritance
in case of failure of direct issue.[f61
One result of the English conquest was the
displacement of the Irish law of inheritance.
Under the feudal customs of England the law
91
PROPERTY RIGHTS IN CELTIC IRISH LAW
of primogeniture prevailed and was also applied
to Ireland. Certain 16th century legal agree-
ments have Irishmen trying to preserve the old
system of equal sharing among sons, but these
were not recognized in English courts, thus
disinheriting the normal Iri ~hhei rs. [~~1
One last look at Irish concepts of property
right may be revealing. A 17th century manu-
script reveals a poetic dialogue between two
contestants before a brehon. The first, re-
presenting the "men of Munster", claims they
own the Shannon River and its resources on
three grounds; the Shannon was conquered in
the 11th century by the Munster king Brian
Boru from the Vikings; that the river in its
lower courses runs through their lands; and
that in a previous case Brian's rights were up-
held. The poet representing the "men of
Connacht" bases his claim on the fact that the
river was always recognized as theirs from the
time of Patnck to that of Brian; that the passage
of a river through the land of Munster does not
make it the property of Munster, any more
than a man travelling through Munster bed
comes thereby a Munsterman; that the judge-
ment in favor of Brian was invalid because
made by a foreigner (thus unfamiliar with Irish
law); and lastly that the river belonged t o
Connacht because it had its source in that land.
The brehon decided in favor of the poet of
Connacht. He held that "just as the offspring
of every father belongs to the father and in-
herits his patrimony, the natural father of every
stream is every unexhausted well from which
it springs forth first". As the Shannon has its
source in Connacht, it and its resources belong
to the men of Connacht. The previous judg-
ment on behalf of Brian is interesting also, and
not repudiated explicitly. Brian as presumptive
owner of the river claimed ownership of a jewel
found in the gullet of a fish taken from the river
by a trespassing fisherman. He won his claim
since the fish in a lake or river belonged to its
owner.
Rivers and streams and waters in Ireland are
still held in private ownership-but by descen-
dants of the English feudalists.[3*1
A fair test of the sophistication of any legal
system might be to examine the extent to which
women enjoy legal capacity and property -Is.
By this standard Irish law in the 8th century
may have had more sophistication than English
law in the days of Queen Victoria.
Irish law was typically Indo-European in
that it was patriarchal in character at the dawn
of the historical period. In all the oldest legal
texts* women have no legal capacity to act or
own property in their own right. They are
under the tutelage of some male-father,
brother, husband or son-just as if they were
children.
Yet even under this burden, women were in
practice straining t o break the bonds of the law.
The early law tracts found it necessary to men-
tion that a husband has the right to rescind any
contract made by his wife in his absence, even if
she had found sureties to support it. The con-
tract was deemed invalid, and the sureties as
well. But the clear implication is that women
were in fact making contracts in their husband's
name in his absence, and the jurist who com-
posed the tract must have been under some
pressure to acknowledge the practice, for he
specified that such an invalid contract could be
validated if the husband neglected to repudiate
it within 15 days of his return home or of his
being notified of its existence.[391
The legal incapacity of women is also evident
in the earliest forms of marriage contract in
which the wife is under her husband's tutelage.
But already a concession to her appears. If
she is of rank equal to him, she may interpose
to prevent him making a dochor, a "bad" or
disadvantageous contract (see above). Her
intervention does not invalidate the contract;
it merely suspends its coming into force until
her son or husband's kinsmen can be informed
and given time to act. The implication is that
her husband is about to alienate property that
is not fully his to dispose of. Even if she is
only betrothed, a woman can intervene in some
instances to prevent her future husband from
acting, at least temporarily.[401
92 JOSEPH R.PEDEN
Another somewhat important breach which
opened the way for extending women's legal
capacity wai recognition of her right to give
a gift of a value no greater that he^ honor-price-
normally half that of her husband. Gift-giving
is not a contractual act, but it implies the capa-
city to own property in one's own right. Speci-
fically she had the right to give the "product of
her own hands" to the Church.
The greatest departure from the system of
male tutelage over women is found in the law
tract called the Senchus Mor composed in the
early 8th century and reflecting the teachings
of a school of law operating in Northern Ire-
land. There, as in so many other cases, one of
the pressure points for granting women wider
legal capacity was the natural desire of sonless
fathers to wish to bequeath their property to
their daughters. In the SMdaughters are recog-
nized as having the right to a life interest in the
landed property of their father if he left no
sons, or presumably grandsons of the male
line. But at the daughter's death, the land,
which appears to have been familial, reverted to
the natural male heirs of the father's fine or
kindred. As an heiress to such property, the
daughter logically had to have the means to
protect it; therefore she was recognized as
having a variety of legal rights including the
right to sue and be sued, to engage in distraint
and even to make legal entry on disputed or
unoccupied land by almost the same procedure
as was open to males in the same circumstances.
Recognition of life interest in familial land in
certain circumstances also implied that she had
fuU ownership of the product of that land, and
the right to dispose of it freely. The older form
of marriage contract in which the woman was
under her husband's tutelage did not lend itself
to such a situation, and it now gave way to a
new form of marital contract which soon be-
came the norm among the propertied classes.
Called a marriage of "mutual portions", it
required that each partner to a marriage bring
to it a set portion of property which was to be
held jointly by husband and wife, its profits
being divided proportionately between them.
In this joint ownership-partnership, no contract
was valid without the consent of each partner,
except when the contract "advanced their
common well-being". If either party made a
dochor or disadvantageous contract, it could
be rescinded within IS days of the other partner
returning home or receiving notificatioh of its
having been made. Specific types of contracts
mentioned in the texts include the hire of land,
the purchase of livestock, the purchase of
necessary household equipment or supplies,
and agreement between kinsmen for joint til-
lage of fields. No object whose lack was disad-
vantageous to-the joint household could be
sold without mutual consent.~4~l
In addition to the property which the mar-
riage partners held jointly, each could own
additional property, including the profits of
their joint holding, in absolute single or sole
ownership. The only restriction on the profits
of their joint enterprise was that the wik could
dispose of her share only to the value of her
honor-price which was half that of her husband.
This may have had some further restriction as
to time limit but the texts are silent on it. The
husband's share of the profits of their joint
household was his sole property, but in certain
instances his wife could dispose of it without
his consent. She could alienate it to his advan-
tage, but was subject to a fine if she acfed with-
out his consent. If he incurred any loss in the
transaction, and she somehow made a gain,
she could be sued by her husband for theft.
This rule seems to envision embezzlement or
fraud among partners. 14'1
A woman could inherit property from her
mother if there were no sons, but normally the
sons were the natural heirs to their mother's as
well as their father's property. If childless, a
woman's property reverted to her nearest male
kinsmen-not her husband--or she could be-
queath it to the Church.
One of the most startling aspects of the Irish
law was its treatment of the rights of women in
various sexual relationships outside Christian
marriage and their right to divorce. In one legal
tract no less than ten different kinds of sexual
union between males and females are legally
recognized-each having a very precise legal
character, each partner enjoying specific pro-
perty rights and obligations. From a Christian
93
PROPERTY RIGHTS IN CELTIC IRISH LAW
viewpoint, some of these relationships are
clearly polygamous, others irregular, some
even casual or violent. Most legal systems in
Christian Europe denied these women legal
status and rights, and extended these depri-
vations to the children unless the father recog-
nized them. The Irish law recognized rights
of maintenance and support which vary in de-
gree and amount according to the character of
the sexual union. For example, in a marriage
of mutual portions the cost of "fostering" or
rearing a child is shared equally by the parents;
but if the child is horn of a bondwoman, or as
a result of rape, or in secret, the father is res-
ponsible solely for its rearing costs. In some
instances the male has some control over the
woman's property rights and a right to share in
her honor-price; in others she controls some of
his property rights and shares in his honor price.
The detail, extensiveness, balance and propor-
tionality with which the rights and obligations
of each partner are assigned in these very un-
christian couplings is unique in the law tracts
of Christian Eur0pe.1~1
Although it has been suggested that this i;
another instance of the archaic and unreal
character of the Irish law tracts, which could
not have had validity in a Christianized Ireland,
the evidence suggests otherwise. Throughout
the medieval period, both Irish clerical and
foreign commentators frequently denounce the
Irish for their failure to suppress sexual promis-
cuity and adhere to the marriage laws of the
Church and "civilized" societies. It is most
unlikely that the Irish were more promiscuous
than other peoples; but it was their unique prac-
tice of continuing to separate canon law from
civil law that seemed so scandalous to other
Europeans. [4Sl
Similarly, the Irish law recognized the right
of divorce. A man might repudiate his wife for
dishonoring him, doing him some injury or
willful abortion. But, incredibly, the wifecould
initiate a divorce action against her husband!
She could charge consanguinity, incurable in-
firmity, sterility, cruelty evidenced by lasting
injury, slanderous remarks as to her character,
abandonment for another woman, willful ne-
glect in supplying the necessities of life, or aban-
donment by reason of his entering a monastery.
None of the above except consanguinity was
grounds for annulment in canon law. There
were also some eleven categories of legal
separation with respective property rights and
obligations regarding the care of children and
distribution of property. That these laws were
not "obsolete" can be shown in the marital
history of Gormflath. Wife first of Olaf,
Viking king of Dublin, widowed, she married
Malachy, king of Meath and High-King of Tara
A.D. 980. Malachy repudiated her, and she
later married and divorced Brian Boru, who
also won the High-Kingship by replacing
Malachy. Thus she had two ex-husbands still
living when she became betrothed to a thud,
Sigurd, Earl of Orkney. V6I
While the history of Irish law between the
8th and 17th centuries is very sketchy due to the
lack of surviving historical materials, occasional
references indicate that women continued to
enjoy an exceptional standing in law with re-
gard to their property rights down to the end
of native Irish culture and independence in the
early 17th century. In the early 14th century
there is reference to a woman acting as an agent
for an English proprietor whose cattle have
been "stolen" by some Irishmen. She is com-
missioned to mediate for their return-the Irish
having in their law invoked the law of distraint
on the Englishmen's cattle. There is even a
reference to a woman sitting as an arbitrator
along with a brehon in a suit. In the early 17th
century the English observer Sir John Davies in
hi book investigating why the Irish were so
hard to conquer remarks: that the Irish are so
savage that "the wives of Irish lords and chief-
tains claim to have sole property in a certain
portion of the goods during coverture with the
power to dispose of such goods without the
assent of their husbands; (therefore) it was
resolved and declared by all the (English) judges
that the property of such goods should he ad-
judged to be in the husbands and not in the
wives as the (English) common law is in such
cases". This is but another example of the
destructive and retrogressive effect of the im-
position of English common law on the legal
status and property rights of the lrish people.1471
94 JOSEPH R. PEDEN
CONCLUSION AND SUMMARY
While a comprehensive survey of the Irish
law of property and property rights cannot
yet be written, we can already see that the idea
of private ownership permeates those aspects
of the law which have been subjected to recent
study. The Irish frankly and openly used
assessments of property as the criterion for
determining a man's social and legal status, the
extent of his capacity to act as a surety or com-
purgator, and to fix the amounts of compen-
sation due hi as a victim of crime or any kind
of injury. Ownership of land determined a
man's status as free or unfree and his right to
participate in the public assembly. The needs
of the Church modified but did not alter the
basic character of native Irish institutions and
law. While it secured for itself almost total
freedom from lay ownership and secular obli-
gations, it was never able to fully destroy the
essentially secular character of Irish law as
exemplified in the laws on marriage and di-
vorce. The legal capacity of women showed
exceptional development and gave women pro-
perty rights in the 8th century that were cen-
turies ahead of those enjoyed by English
women. The fact that lrish law was the creation
of private individuals who were professional,
even hereditary, jurists, gave to the law both a
conservative yet flexible and equitable charac-
ter. Their power rested upon the free consent
of the community in choosing them as arbitra-
tors in disputes; and this made equity and jus-
tice more likely than in royal courts where the
interests of the State and its rulers are para-
mount. The invasion and conquest of Ireland,
the work of over 400 years before it was com-
pleted, was eventually fatal to the Irish system
of law snd the culture and civilization it ex-
pressed. The English State was incompatible
with the Irish tuoth; the English common law
was totally incompatible with the Irish law.
Ireland from the 12th century was a single land
in which two nations and two laws and two
cultures engaged in a constant struggle for sur-
vival. The end came in the early 17th century
with the flight bf the last Irish kings from Ulster
and the new plantation of that region by Pro-
testant Scots sent by James I-that most ab-
solute of English Kings.
As for the native Irish and their ancient
culture, the English official Sir ~ o h h ! Davies
thought he said it all:
"For if we consider the Nature of the Irish Customes,
we shall finde that the people that docth use them,
must of n mi t i e b e RebeUes to all good O o v ~ e n t ,
destroy the commonwealth wherein they live. and
bring Barbarisme and desolation u
,,
most fruitfull Land of the world".'
E'
I
n the r i b 1 and
NOTES
I. The Ancient Lows of Ireland, 6 volumes. 1865 - 1901.
The most complete evaluation of the law tracts by a
competent lrish philologist and jurist is D. A. Binchy's
Rhys Memorial Lecture before the British Academy
entitled TheLinguisficrmdHistoncalValue oftheIrish ..
Lnw Tracts (London. 1943). Also Binchy, "Anden!
Irish Law", irish Jurisr NS l(1966). 84 -92.
2. Patrick W. Joyce, A Social Hisfory of Ancient Ireland
(Dublin, 1%). 2 vols. Reprinted in 1913 and 1968.
3. P: Boissonade, Life and Work in Medieval ~ u r o &
trans. by Eileen Power (London, 1927). Harper Tqrch
book edition (New York, 1964). Sn pp. 78-79 of the
latter.
4. See the review of Daniel Coghlan's Ancient Land
Tenures of Ireland in Irish Law Times and Solicitors'
Journal (March 10, 1934). Further comments in July
14 and Sept. I5 issues. The reviewer i s anonymous.
5. P. Bereford Ellis, A Hislory oft he Irish Working C h
(London, 1972). The author ignores all modern
scholarship on the subject and rejects MacNeill's
criticismof Joyce because he was procapitalist!
6. Binchy, Hisroricai ValueofIrishLawTracfs,22. Also,
Gearoid Mac Niocaill, "Notes on Litigation i n late
Irish law", Irish Jurist NS 2 (1%7), 299 - 307, and G. J.
Hand, "The Forgotten Statutes of Kilkenny", Irish
Jurirr NS l(1966). 301.
7. D. A. Binchy in Early Irish Society (Dublin, 1954).
56-58. Also, Mylei Dillon and Nora Chadwick; The
Celtic Real m (London, 1%7), 93 - 98.
8. Binchy, Irish Jurist NS 1(I%), 84 - 92.
9. Ibid. See also, Eoin MacNeill, "Prolegomena to a
Study of the Ancient Laws of Ireland" Irish Jurist
NS2(1%7), 106- 115.
10. The most authoritative recent study of the irishchurch
in the preconquest period is Kathleen Hughes, The
Church in Early Irish Society (London, 1966). See
chapters4 and 5 in particular here.
11. Ibid. Chapter 12, pp. 123 - 133 and Chapter 5, pp.
45 - 55.
12. Ibid. Also, for St. Patrick, see R.P.C. Hawon, St.
Patrick: His Origins and Career (New York, 19681,
139.
i3. Ludwig Bieler, "The lrish Penitentials", Scriptores
LoriniHibernioe (Dublin. 1963).
14. Hughes, Chapter 14, pp. 143 - 156. See especially
149.151 ... ....
15. See paper given to Columbia University Faculty Seminar
I
95
PROPERTY RIGHTS IN CELTIC IRISH LAW
in Hislory of Legal and Political Thought (1%6) by
Prof. Charles Donohuc 01 Fordham University: On
the Senchar Mor, an early 8th century tract including
materialon Church-StateRelotiom. Also, Hughs, 161.
16. Hughs, Chapter 8, pp. 79-90 on monastic pmchi ae
and Chapter 11, pp. Ill-122on Armagh.
17. J. A. Watt. m e Church and the Two Nations in
Medieval Ireland (Cambridge, England, 1970). 160-
169.
18. Ibid.
19. Ibid, 206-207 and2l l .
20. Eoin Mac Neill. "The Law of Status or Franchise",
Proe, Royal Irish Academy 36C (1921-24), 265 - 316.
See here p. 273.
21. Binchy eipressed some doubt on this in his Historical
Value,p. 33.
22. See Dillon and Chadwick, Celtic Real m (London,
1%7), 98 - 99. Also, see Mac Neill, op. cit.
23. Ibid.
24. Rudolf Thurneysen, "Sochor and Dochor': Emy s
and Studies in Honor of Pro[. Eoin Mac Neill, edited
by John Ryan S. J. (Dublin, 1940), 158 - 159.
25. For a discussion of clientship, see D. A. Binchy, Crith
Gablach (Dublin. 1941). pp. 78, 80, % - 97 and 107.
Also, Dillon andChadwick, 95 -%.
26. Gcaroid Mac Niocaill, "The Origins of the Betagh",
Irirh Jurist NS 1 (I%@, 292-298. Liam Price dis-
agrees wt h Mac Nicoaill in Eriu 20 (1966), 185 - 190,
but J. A. Hand is convinced by Mac Niocaill's analysis
in his English Law in Ireland 1290 - 1324 (Cambridge,
I%)), 213.
27. Binchy. Crith Gablach, 105.
28. Onfuidir, Ibid. 93. Otherwise, see op. cit.
29. Eoin Mac Neill. Celticlrelond(Dublin, l92l), 144 - 151.
30. On the policy of "surrender and re-grant" under
Henry VllI see J. C. Becket, The Making of Modem
IreIand(London, I%), 18- 19.
31. D. A. Binchy, "lrish Law Traas Re-edited: Coibnes
Uisci Thairidne (AL IV, 206-222)", Eriu 17 (1955),
seep. 81 n. 9 521s. Also, Mac Neill, Celticlreland, 170
if.
32. AncientLaws, IV, p. 372 if.
33. op. Cit.
34. Ibid., 71-72.
35. Mac Neill, Celtic Ireland, I52 - 176. Also, Mac Neill,
"The lrish Law of Succession", Studies 8 (1919),
367 ff.
36. Mac NeiU, Studies 8 (1919, 376 - 377. Also, Kuno
Meyer,inEriu 1 ( I W) , 214-215.
37. J. Otway-Ruthven, "The Native lrish and English Law
in Medieval Ireland". Irirh Historical Studies 8 (1950),
1- 16.
38. Brian O'Cutv, "The Poctic Confronlatlon about the
Shannon Ri w. " Eriu 19 (1962). 89 - 105. The poem
isdatcdtothc lSth<entury.
39. D. A. Binchy, cd. Shrdres m Early lrlrh Law (Dublm,
1936). This is the most complctc study of the ctatus of
women in Irish law and the product of a seminar con-
ducted by Rudolph Thurneysen, the distinguished
Celticist. See here D. A. Binchv. "The L e d Caoacitv ~ ~~~~~~
of Women in Regard to d&ma c t s " , - ~~l ~: pi .
207 - 234, especially 21 1 - 2i6.
40. Binchy, SEIL, 216 - 217 and 224 - 225.
41. Ibid., 226-227 and on W9note 1. Women could act
as sureties under certain limitations, see pp. 232 - 234.
On gifts see Myles Dillon, "The Relationship of
Mother and Son, Father and Daughter and the Law
of inheritance", SEIL, 129- 179peuim.
42. Binchy, SEIL, 22b-228.
43. Ibid. 227 - 230. Some texts indicate daughters may
inherit some kinds of chattels from their fathers, Dillon,
SEIL, 171,113.
44. Nancy Power, "Classes of Women Described in the
Senchas Mor", Studies in Early Irish Low (SEIL), 81 -
108.
45. For a discussion of Irish marriage law and 12th century
criticisms of it, A. Gwynn, "The First Synod of
Cashel", Irish EccIesiasticalReview 66 (INS), 81 - 92;
67 (1946). 109 - 122.
46. August Knoch, "Die Eheschudung in alter Irischen
Recht", Studies in Early Irish Law, 235 - 268. For
Gormflath, see Edmund Curtis. A History of Ireland
(Dublin, 1950). 28-30.
47. A quotation from Sir John Davies on "The Irish
Custome de Gravelkind in a review of Studres in
Irish Law edited by D. A. Binchy in The Irirh Low
Times, 15 August, 1936.
48. Sir John Davies, A dicovery 01the true c a m why
Ireland was never entirely subdued (London, 1612),
An American Experiment in Anarcho-
Capitalism: The -Not So Wild, Wild West*
by
Terry L. Anderson
and
P. J. Hill
Department of Economics, Montana State University
The growth of government during this century has attracted the attention of
many scholars interested in explaining that growth and in proposing ways to
limit it. As a result of this attention, the public choice literature has experi-
enced an upsurge in the interest in anarchy and its implications for social
organization. The work of Rawls and Nozick, two volumes edited by
Gordon Tullock, Explorations in the Theory of Anarchy, and a book by
David Friedman, The Machinery of Freedom, provide examples. The goals
of the literature have varied from providing a conceptual framework for
comparing Leviathan and its opposite extreme to presenting a formula for
the operation of society in a state of anarchy. But nearly all of this work has
one common aspect; it explores the "theory of anarchy." The purpose of this
paper is to take us from the theoretical world of anarchy to a case study of its
application. To accomplish our task we will first discuss what is meant by
"anarcho-capitalism" and present several hypotheses relating to the nature
of social organization in this world. These hypotheses will then be tested in
the context of the American West during its earliest settlement. We propose
to examine property rights formulation and protection under voluntary
organizations such as private protection agencies, vigilantes, wagon trains,
and early mining camps. Although the early West was not completely
anarchistic, we believe that government as a legitimate agency of coercion
was absent for a long enough period to provide insights into the operation
and viability of property rights in the absence of a formal state. The nature
of contracts for the provision of "public goods" and the evolution of western
"laws" for the period from 1830 to 1900 will provide the data for this case
study.
* This paper was written while Terry Anderson was a National Fellow at the Hoover
Institution, 1977-78. While retaining responsibility for any errors, the authors wish to
thank Jon Christianson, Murray Rothbard, and Gordon Tullock for their valuable com-
ments.
9
10 THE JOURNAL OF LIBERTARIAN STUDIES
The West during this time often is perceived as a place of great chaos, with
little respect for property or life. Our research indicates that this was not the
case; property rights were protected and civil order prevailed. Private
agencies provided the necessary basis for an orderly society in which prop-
erty was protected and conflicts were resolved. These agencies often did not
qualify as governments because they did not have a legal monopoly on
"keeping order." They soon discovered that "warfare" was a costly way of
resolving disputes and lower cost methods of settlement (arbitration, courts,
etc.) resulted. In summary, this paper argues that a characterization of the
American West as chaotic would appear to be incorrect.
Anarchy: Order or Chaos?
Though the first dictionary definition of anarchy is "the state of having no
government," many people believe that the third definition, "confusion or
chaos generally," is more appropriate since it is a necessary result of the first.
If we were t o engage seriously in the task of dismantling the government as it
exists in the U.S., the political economist would find no scarcity of programs
t o eliminate. However, as the dismantling continued, the decisions would
become more and more difficult, with the last "pubiic goods" to be dealt with
probably being programs designed to define and enforce property rights.
Consider the following two categories of responses t o this problem:
1) The first school we shall represent as the "constitutionalist" or "social
contractarian" school. For this group the important question is "how do
rights re-emerge and come t o command respect? How do 'laws' emerge that
carry with them general respect for their 'legitimacy'?"' This position does
not allow us to "Sump over' the whole set of issues involved in defining the
rights of persons in the first place."z Here collective action is taken as a
necessary step in the establishment of a social contract or constitutional
contract which specifies these rights. To the extent that rights could be
perfectly defined, the only role for the state would be in the protection of
those rights since the law designed for that protection is the only public
good. If rights cannot be perfectly well defined, a productive role for the
state will arise. The greater the degree to which private rights cannot be
perfectly defined, the more the collective action will be plunged into the
"eternal dilemma of democratic government," which is "how can govern-
ment, itself the reflection of interests, establish the legitimate boundaries of
self-interest, and how can it, conversely carve out those areas of intervention
that will be socially protective and collectively useful?"3 The contractarian
solution to this dilemma is the establishment of a rule of higher law or a
constitution which specifies the protective and productive roles of the
government. Since the productive role, because of the free rider problem,
11 AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
necessarily requires coercion, the government will be given a monopoly on
the use of force. Were this not the case, some individuals would choose not
t o pay for services from which they derive benefits.
2) The second school can be labeled "anarcho-capitalist" or "private
property anarchist." In its extreme form this school would advocate elimi-
nating all forms of collective action since all functions of government can he
replaced by individuals possessing private rights exchangeable in the market
place. Under this system all transactions would be voluntary except insofar
as the protection of individual rights and enforcement of contracts required
coercion. The essential question facing this school is how can law and order,
which d o require some coercion, he supplied without ultimately resulting in
one provider of those services holding a monopoly on coercion, i.e., govern-
ment. If a dominant protective firm or association emerges after exchanges
take place, we will have the minimal state as defined by Nozick and will have
lapsed back into the world of the "constitutionalist." The private property
anarchist's view that markets can provide protection services is summarized
as follows:
The profit motive will then see to it that the most efficient providers of
high quality arbitration rise to the top and that inefficient and graft-
oriented police lose their jobs. In short, the market is capable of provid-
ing justice at the cheapest price. According to Rothbard, to claim that
these services are "public goods" and cannot be sold to individuals in
varying amounts is to make a claim which actually has little basis in
fact.'
Hence, the anarcho-capitalists place faith in the profit seeking entrepreneurs
t o find the optimal size and type of protective services and faith in competi-
tion t o prevent the establishment of a monopoly in the provision of these
services.
There are essentially two differences between the two schools discussed
above. First, there is the empirical question of whether competition can
actually provide the protection services. On the anarcho-capitalist side, there
is the belief that it can. On t he constitutionalists or "minimal state" side,
there is the following argument.
Conflicts may occur, and one agency will win. Persons who have previ-
ously been clients of losing agencies will desert and commence purcha-
sing their protection from winning agencies. In this manner a single
protective agency or association will eventually come to dominate the
market for policing services over a territory. Independent persons who
refuse to purchase protection from anyone may remain outside the scope
of the dominant agency, but such independents cannot be allowed to
punish clients of the agency on their own. They must be coerced into not
punishing. In order to legitimize their coercion, these persons must he
compensated, but only to the extent that their deprivation warrants.'
12 THE JOURNAL OF LIBERTARIAN STUDIES
The second issue is more conceptual than empirical, and hence, cannot be
entirely resolved through observation. This issue centers on the question of
how rights are determined in the first place; how do we get a starting point
with all its status quo characteristics from which the game can be played.
Buchanan, a leading constitutionalist, criticizes Friedman and Rothbard,
two leading private property anarchists, because "they simply 'jump over'
the whole set of issues involved in defining the rights of persons in the first
pl a ~e . " ~ To the constitutionalist the Lockean concept of mixing labor with
resources t o arrive at "natural rights" is not sufficient. The contractarian
approach suggests that the starting point is determined by the initial bar-
gaining process which results in the constitutional contract. Debate over this
issue will undoubtedly continue, but even Buchanan agrees that "if the
distribution or imputation of the rights of persons (rights to do things, both
with respect to other persons and t o physical things) is settled, then away we
go. And aside from differences on certain specifics (which may be important
but relatively amenable to analysis, e.g., the efficacy of market-like arrange-
ments for internal and external peace-keeping), I should accept many of the
detailed reforms that these passionate advocates propose."'
Our purpose in this paper is to discuss, in a historical context, some of the
important issues that Buchanan says are amenable to analysis. We do not
plan to debate the issue of the starting point, but will be looking at the
"eRcacy of market-like arrangements for internal . . . peacekeeping.""t
does seem, for the time period and the geographical area which we are
examining, that there was a distribution of rights which was accepted either
because of general agreement to some basic precepts of natural law or
because the inhabitants of the American West came out of a society in which
certain rights were defined and enforced. Such a starting point is referred t o
as a Schelling point, a point of commonality that exists in the minds of the
participants in some social situation.9 Even in the absence of any enforce-
ment mechanism, most members of the western society agreed that certain
rights t o use and control property existed. Thus when a miner argued that a
placer claim was his because he "was there first," that claim carried more
weight than if he claimed it simply because he was most powerful. Tastes,
culture, ethics, and numerous other influences give Schelling point charac-
teristics t o some claims but not t o others. The long period of conflicts
between the Indians and the settlers can be attributed to a lack of any such
Schelling points. We concentrate, however, on arrangements for peace-
keeping and enforcement that existed among the non-indigenous, white
population.
In the following pages we describe the private enforcement of rights in the
West between the period of 1830 and 1900. This description does allow one
to test, in a limited fashion, some of the hypotheses put forth about how
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
13
anarcho-capitalism might function. We qualify the test with "limited" be-
cause a necessary feature of such a system is the absence of a monopoly on
coercion.'o Various coercive agencies would exist hut none would have a
legitimized monopoly on the use of such coercion. The difficulty of dealing
with this proposition in the American West is obvious. Although for much
of the period formal government agencies for the protection of rights were
not present, such agencies were always lurking in the background. There-
fore, none of the private enforcement means operated entirely independent
of government influence. Also, one has t o he careful in always describing
private agencies as "non-government" because, to the extent that they
develop and become the agency of legitimized coercion they also qualify as
"government." Although numerous descriptions of such private agencies
exist, it is often times difficult to determine when they are enhancing
competition and when they are reducing it.
Despite the above caveats, the West is a useful testing ground for several
of the specific hypotheses about how anarcho-capitalism might work. We
use David Friedman's The Machinery of Freedom as our basis for the
formulation of hypotheses about the working of anarcho-capitalism because
it is decidedly non-utopian and it does set out, in a fairly specific form, the
actual mechanisms under which a system of non-government protective
agencies would operate. The major propositions are:
I ) Anarchocapitalism is not chaos. Property rights will be protected and civil
order will prevail.
2) Private agencies w~ll provide the necessary functions for preservation of an
orderly society.
3) Private protection agencies will soon discover that "warfare" is a costly way of
resolving disputes and lower-cost methods of settlement (arbitration, courts, etc.)
will result.
4) The concept of 'Sustice" is not an immutable one that only needs to be discovered.
Preferences do vary across individuals as to the rules they prefer to live under and the
price they are willing to pay for such rules. Therefore, significant differences in rules
might exist in various societies under anarcho-capitalism.
5) There are not significant enough economies of scale in crime so that major
"mafia" organizations evolve and dominate society.
6) Competition among protective agencies and adjudication bodies will serve as
healthy checks on undesirable behavior. Consumers have better information than
under government and will use it in judging these agencies.
Cases from the West
Before turning t o specific examples of anarcho-capitalistic institutions in
the American West, it is useful t o examine the legendary characterization of
the "wild, wild West." The potential for chaos is a major objection t o trust in
the market for enforcement of rights and many histories of the West seem t o
14 THE JOURNAL OF LIBERTARIAN STUDIES
substantiate this argument. These histories describe the era and area as
characterized by gunfights, horse-thievery, and general disrespect for basic
human rights. The taste for the dramatic in literature and other entertain-
ment forms has led t o concentration on the seeming disparity between the
westerners' desire for order and the prevailing disorder. If the Hollywood
image of the West were not enough t o taint our view, scholars of violence
contributed with quotes such as the following: "We can report with some
assurance that compared t o frontier days there has been a significant dec-
rease in crimes of violence in the United States.""
Recently, however, more careful examinations of the conditions that
existed cause one t o doubt the accuracy of this perception. In his book,
Frontier Violence: Another Look, W. Eugene Hollon stated that the he-
lieved "that the Western frontier was a far more civilized, more peaceful, and
safer place than American society is today."'Z The legend of the "wild, wild
West" lives on despite Robert Dykstra's finding that in five of the major
cattle towns (Abilene, Ellsworth, Wichita, Dodge City, and Caldwell) for the
years from 1870 t o 1885, only 45 homicides were reported-an average of 1.5
per cattle-trading season.') In Abilene, supposedly one of the wildest of the
cow towns, "nobody was killed in 1869 or 1870. In fact, nobody was killed
until the advent of officers of the law, employed t o prevent killings."'4 Only
two towns, Ellsworth in 1873 and Dodge City in 1876, ever had five killings
in any one year.15 Frank Prassel states in his book subtitled "A Legacy of
Law and Order," that "if any conclusion can be drawn from recent crime
statistics, it must be that this last frontier left no significant heritage of
offenses against the person, relative t o other sections of the country."l6
Moreover, even if crime rates were higher, it should be remembered that the
preference for order can differ across time and people. To show that the
West was more "lawless" than our present day society tells one very little
unless some measure of the "demand for law and order" is available. "While
the frontier society may appear to have functioned with many violations of
formal law, it sometimes more truly reflected community customs in conflict
with superficial and at times alien standards."" The vigilance committees
which sprang up in many of the mining towns of the West provide excellent
examples of this conflict. In most instances these committees arose after civil
government was organized. They proved that competition was useful in
cases where government was ineffective, as in the case of San Francisco in
the 1850' s, ' hr where government became the province of criminals who
used the legal monopoly on coercion t o further their own ends, as in Virginia
City, Montana Territory in the 1860's.lY Even in these cases, however,
violence was not the standard modus operandi. When the San Francisco
vigilante committee was reconstituted in 1856, "the group remained in action
for three months, swelling its membership t o more than eight thousand.
15 AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
During this period, San Francisco had only two murders, compared with
more than a hundred in the six months before the committee was formed."2Q
To understand how law and order were provided in the American West,
we now turn to four examples of institutions which approximated anarcho-
capitalism. These case studies of land claims clubs, cattlemens' associations,
mining camps, and wagon trains provide support for the hypotheses pre-
sented above and suggest that private rights were enforced and that chaos
did not reign.
a. Land Clubs:
For the pioneer settlers who often moved into the public domain before it
was surveyed or open for sale by the federal government, definition and
enforcement of property rights in the land they claimed was always a
problem. "These marginal or frontier settlers (squatters as they were called)
were beyond the pale of constitutional government. No statute of Congress
protected them in their rights to the claims they had chosen and the improve-
ments they had made. In law they were trespassers; in fact they were honest
farmers."21 The result was the formation of "extra-legal" organizations for
protection and justice. These land clubs or claims associations, as theextra-
legal associations came t o he known, were found throughout the Middle
West with the Iowa variety receiving the most attention. Benjamin F.
Shambaugh suggests that we view these clubs "as an illustrative type of
frontier extra-legal, extra-constitutional political organization in which are
reflected certain principles of American life and character."'2 To Frederick
Jackson Turner these squatters' associations provided an excellent example
of the "power of the newly arrived pioneers t o join together for a common
end without the intervention of governmental institutions. . . ."2'
Each claims association adopted its own constitution and by-laws, elected
officers for the operation of the organization, established rules for adjudicat-
ing disputes, and established the procedure for the registration and protec-
tion of claims. The constitution of the Claim Association of Johnson
County, Iowa offers one of the few records of club operation. In addition to
president, vice president, and clerk and record, that constitution provided
for the election of seven judges, any five of whom could compose a court t o
settle disputes, and for the election of two marshals charged with enforcing
rules of the association. The constitution specified the procedure whereby
property rights in land would be defined as well as the procedure for
arbitrating claims disputes. User charges were utilized for defraying arbitra-
tion expenses.
In such case of the place and time of holding such court and summons all
witnesses that either of the parties may require the court made previous
16 THE JOURNAL OF LIBERTARIAN STUDIES
to their proceeding to investigate any case require the plaintiff and
defendant to deposit a sufficient sum of money in their hands to defray
the expenses of said suit or the costs of said suit, and should either party
refuse to deposit such sum of money the court may render judgment
against such peison refusing to do. . . .24
As a sanction against those who would not follow the rules of the
association, violence was an option, but the following resolution suggests
that less violent means were also used.
Resolved, that more effectually to sustain settlers in their just claims
according to the custom of the neighborhood and to prevent difficulty
and discord in society that we mutually pledge our honours to observe
the following resolutions rigidly. That we will not associate nor counte-
nance those who do not respect the claims of settlers and further that we
will neither neighbor with them . . . Trade barter deal with them in any
way whatever. . . .a
That the constitutions, by-laws, and resolutions of all claims clubs were
not alike suggests that preferences among the squatters did vary and that
there were alternative forms of protection and justice available. The most
common justification for the clubs was stated as follows: "Whereas it has
become a custom in the western states, as soon as the Indian title t o the
public lands has been extinguished by the General Government for the
citizens of the United States t o settle upon and improve said lands, and
heretofore the improvement and claim of the settler to the extent of 320
acres, has been respected by both the citizens and laws of Iowa.. . ."26Other
justification "emphasized the need of protection .against 'reckless claim
jumpers and invidious wolves in human form,' or the need 'for better
security against foreign as well as domestic aggression."'27 Some associations
were formed specifically for the purpose of opposing "speculators" who were
attempting t o obtain title t o the land. The constitutions of these clubs as
evidenced by the Johnson County document specifically regulated the
amount of improvements which had to be made on the claim. Other associa-
tions, however, encouraged speculation by making no such requirements.
These voluntary, extra-legal associations provided protection and justice
without apparent violence and developed rules consistent with the prefer-
ences, goals, and endowments of the participants.
b. Cattlemens' Associations:
Early settlement of the cattle frontier created few property conflicts, but as
land became more scarce, private, voluntary enforcement mechanisms
evolved. Initially "there was room enough for all, and when a cattleman rode
up some likely valley or across some well-grazed divide and found cattle
thereon, he looked elsewhere for range."28 But even "as early as 1868, two
17
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
years after the first drive, small groups of owners were organizing themselves
into protective associations and hiring stock detective^."^^ The place of these
associations in the formation of "frontier law" is described by Louis Pelzer.
From successive frontiers of our American history have developed
needed customs, laws, and organizations. The era of fur-trading pro-
duced its hunters, its barter, and the great fur companies; on the mining
frontier came the staked claims and the vigilance committees; the camp
meeting and the circuit rider were heard on the religious outposts; on the
margins of settlement the claim clubs protected the rights of the squatter
farmers; on the ranchmen's frontier the millions of cattle, the vast
ranges, the ranches, and the cattle companies produced pools and local,
district, territorial and national cattle associations.30
As Ernest Staples Osgood tells us, it was "the failure of the police power in
the frontier communities t o protect property and preserve order," which
"resulted over and over again in groups who represented the will of the law-
abiding part of the community dealing out summary justice t o offenders.""
Like the claims associations, the cattlemen's associations drew up formal
rules governing the group, but their means of enforcing private rights was
often more violent t han the trade sanctions specified by the claims associa-
tions. These private protection agencies were quite clearly a market response
t o existing demands for enforcement of rights.
Expert gunmen-professional killers-had an economic place in the
frontier West. They turned up wherever there was trouble . . . Like all
mercenaries, they espoused the side which made them the first or best
offer. . . .32
Just why, when, and how he hooked up with the cattlemen around Fort
Maginnis, instead of with the rustlers, is a trifle obscure, hut Bill became
Montana's first stock detective. Raconteurs of the period seem agreed
that Bill's choice was not dictated by ethics, but by the prospect of
compensation. At any rate, he became a hired defender of property
rights, and he executed his assignments-as well as his quarry-with
thoroughness and dispatch.')
The market-based enforcement agencies of the cattlemen's frontier were
different from modern private enforcement firms in that the earlier versions
evidently enforced their own laws much of the time rather than serving as
simply an extension of the government's police force. An often expressed
concern about this type of enforcement is that I) the enforcement will be
ineffective or 2) the enforcement agencies will themselves become large-scale
organizations that use their power t o infringe upon individual rights. We
have argued above that there is little reason t o believe that the first concern is
iustified.
It also appears that the second concern is not supported by the experience
of the American West. Major economies of scale did not seem t o exist in
18
THE JOURNAL OF LIBERTARIAN STUDIES
either enforcement or crime. Although there are numerous records of
gunslingers making themselves available for hire, we find no record of these
gunslingers discovering that it was even more profitable t o band together
and form a super-defense agency that sold protection and rode roughshod
over private property rights. Some of the individuals did drift in and out of a
life of crime and sometimes did form loose criminal associations. However,
these associations did not seem to be encouraged by the market form of
peace keeping, and in fact, seemed to be dealt with more quickly and more
severely under private property protective associations than under govern-
ment organization.
There were a few large private enforcement organizations, in particular
the Pinkerton Agency and Wells Fargo, but these agencies seemed t o serve
mainly as adjuncts to government and were largely used in enforcing state
and national laws. Other large-scale associations, e.g., the Rocky Mountain
Detective Association and the Anti-Horse Thief Association, were loose
information providing and coordination services, and rarely provided on-
the-spot enforcement of private rules.14
c. Mining Camps:
As the population of the U. S. grew, westward expansion was inevitable,
but there can be little doubt that the discovery of gold in California in 1848
rapidly increased the rate of expansion. Thousands of Easterners rushed to
the most westward frontier in search of the precious metal, leaving behind
their civilized world. Later the same experience occurred in Colorado,
Montana, and Idaho and, in each case, the first to arrive were forced into a
situation where they had t o write the rules of the game.
There was no constitutional authority in the country, and neither judge
nor officer within five hundred miles. The invaders were remitted to the
primal law of nature, with, perhaps, the inherent rights of American
citizenship. Every gulch was filling with red-hot treasure hunters; every
bar was pock-marked with "prospect holes"; timber, water-rights, and
town-lots were soon to be valuable, and government was an imperative
necessity. Here was a fine field for theorists to test their views as to the
origin of civil law.15
The early civil law which evolved from this process approximated anarcho-
capitalism as closely as any other experience in the U S .
In the absence of a formal structure for the definition and enforcement of
individual rights, many of the groups of associates who came seeking their
fortunes organized and made their rules for operation before they left their
homes. Much the same as company charters today, these voluntary con-
tracts entered into by the miners specified financing for the operation as well
as the nature of the relationship between individuals. These rules applied
19 AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
only t o the miners in the company and did not recognize any outside
arbitrator of disputes; they did not "recognize any higher court than the law
of the majority of the company."36
As Friedman's theory predicts, the rules under which the companies were
organized varied according to tastes and needs of the company. "When we
compare the rules of different companies organized t o go to the mines, we
find considerable variation."" In addition t o the rules listed above, company
constitutions often specified arrangements for payments to be used for
caring for the sick and unfortunate, rules for personal conduct including the
use of alcoholic spirits, and fines which could be imposed for misconduct, to
mention a few.'Vn the truest nature of the social contract, the governing
rules of the company were negotiated, and as in all market transactions
unanimity prevailed. Those who wished t o purchase other "bundles of
goods" or other sets of rules had that alternative.
Once the mining companies arrived at the potential gold sites, the rules
were useful only insofar as questions of rights involved members of the
company; when other individuals were confronted in the mining camps,
additional negotiation was necessary. Of course, the first issues to arise
concerned the ownership of mining claims. When the groups were small and
homogeneous, dividing up the gulch was an easy task. But when the num-
bers moving t o the gold country reached the thousands, the problems
increased. The general solution was to hold a mass meeting and appoint
committees assigned t o drafting the laws. Gregory Gulch in Colorado
provides an example.
A mass meeting of miners was held June 8, 1859, and a committee
appointed to draft a code of laws. This committee laid out boundaries
for the district, and their civil code, after some discussion and amend-
ment, was unanimously adopted in mass meeting, July 16. 1859. The
example was rapidly followed in other districts, and the whole Territory
was soon divided between a score of local sovereignties.'9
The camps could not live in complete isolation from the established forms
of government, but there is evidence that they were able t o maintain their
autonomy. In California, military posts were established to take care of
Indian troubles, but these governmental enforcement organizations did not
exercise any authority over the mining camps. General Riley in an 1849 visit
to a California camp told the miners that "all questions touching the
temporary right of individuals to work in particular localities of which they
were in possession, should be left t o the decision of the local authorities."40
No alcalde, no council, no justice of the peace, was ever forced upon a
district by an outside power. The district was the unit of political
organization, in many regions, long after the creation of the state; and
delegates from adjoining districts often met in consultation regarding
20 THE JOURNAL OF LIBERTARIAN STUDIES
boundaries, or matters of local government, and reported to their
respective constituencies i n open-air meeting, on hillside or river-bank."
Moreover, the services of trained lawyers were not welcomed in many of
the campus and even forbidden in districts such as the Union Mining
District.
Resolved, that no lawyer be permitted to practice law in this district,
under penalty of not more than fifty nor less than twenty lashes, and he
forever banished from this di~trict.~'
In this way, the local camps were able t o agree upon rules or individual
rights and upon methods for enforcement thereof without coercion from
U.S. authorities. When outside laws were imposed upon the camps, there is
some evidence that they increased rather than decreased crime. One early
Californian writes, "We needed no law until the lawyers came," and another
adds, "There were few crimes until the courts with their delays and technical-
ities took the place of miners'
While the mining camps did not have private courts where individuals
could take their disputes and pay for arbitration, they did develop a system
of justice through the miners' courts. These courts seldom had permanent
officers, although there were instances ofjustices of the peace. The folk-moot
system was common in California. By this method a group of citizens was
summoned to try a case. From their midst they would elect a presiding
officer or judge and select six or twelve persons to serve as the jury. Most
often their rulings were not disputed, but there was recourse when disputes
arose. For example, in one case involving two partners, after a ruling by the
miners' court, the losing partner called a mass meeting of the camp t o plead
his case and the decision was reversed.44 And if alarger group of miners was
dissatisfied with the general rulings regarding camp boundaries or individual
claim disputes, notices were posted in several places calling meeting of those
wishing a division of the territory. "If a majority favored such action, the
district was set apart and named. The old district was not consulted on the
subject, but received a verbal notice of the new organization. Local condi-
tions, making different regulations regarding claims desirable, were the chief
causes of such separations."4~ "The work of mining, and its environment and
conditions, were so different in different places, that the laws and customs of
the miners had to vary even in adjoining districts."46
When disputes did arise and court sessions were called, any man in the
camp might be called upon t o he the executive officer. Furthermore, any one
who was a law-abiding citizen might he considered for prosecutor or defend-
er for the accused.
In Colorado there is some evidence of competition among the courts for
business, and hence, an added guarantee that justice prevailed.
21
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
The civil courts promptly assumed criminal jurisdiction, and the year
1860 opened with four governments in full blast. The miners' courts,
people's courts, and "provisional government" (a new name for "Jeffer-
son") divided jurisdiction in the mountains; while Kansas and the
provisional government ran concurrent in Denver and the valley. Such
as felt friendly to either jurisdiction patronized it with their business.
Appeals were taken from one to the other, papers certified up or down
and over, and recognized, criminals delivered and judgments accepted
from one court by another, with a happy informality which it is pleasant
to read of. And here we are confronted by an awkward fact: there was
undoubtedly much less crime in the two years this arrangement lasted
than in the two which followed the territorial organization and regular
government."
This evidence is consistent with Friedman's hypothesis that when competi-
tion exists, courts will be responsible for mistakes and the desire for repeat
business will serve as an effective check on "unjust" decisions.
d. Wagon Trains:
Perhaps the best example of private property anarchism in the American
West was the organization of the wagon trains as they moved across the
plains in search of California gold. The region west of Missouri and Iowa
was unorganized, unpatrolled, and beyond the jurisdiction of the United
States law. But t o use the old trapper saying that there was "no law west of
Leavenworth" t o describe the trains would be inappropriate. "Realizing that
they were passing beyond the pale of the law, and aware that the tedious
journey and the constant tensions of the trail brought out the worst in
human character, the pioneers . . . created their own law making and law-
enforcing machinery before they started."48 Like their fellow travelers on the
ocean, the pioneers in their prairie schooners negotiated a "plains law" much
like their counterparts' "sea law."49 The result of this negotiation in many
cases was the adoption of a formal constitution patterned after that of the
US. The preamble of the constitution of the Green and Jersey County
Company provides an example.
We, the members of the Green and Jersey County Company of Emi-
grants to California, for the purpose of effectually protecting our per-
sons and property, and as the best means of ensuring an expeditious and
easy journey do ordain and establish the following constitution.sO
From this and the other constitutions which have survived it is clear that
these moving communities did have a basic set of rules defining how "the
game would be played" during their journey. Like the rules of the mining
camps, the wagon train constitutions varied according to the tastes and
needs of each organization, but several general tendencies do emerge. Most
22 THE JOURNAL OF LIBERTARIAN STUDIES
often the groups waited until after they have been on the trail for a few days
and out of the jurisdiction of the United States. One of the first tasks was to
select officers who would be responsible for enforcing the rules. For the
Green and Jersey County Company, which was not atypical, the officers
included a Captain, Assistant Captain, Treasurer, Secretary, and an Officer
of the Guard. The constitutions also included eligibility for voting and
decision rules for amendment, banishment of individuals from the group,
and dissolution of the company. Duties for each officer were often well
specified as in the case of the Charleston, Virginia, Mining Company.sl I n
addition t o these general rules, specific laws were enacted. Again, the
introduction of the Green and Jersey County Company is illustrative.
We, citizens and inhabitants of the United States, and members of the
Green and Jersey County Company of Emigrants to California; about
starting on a journey through a territory where the laws of our common
country do not extend their protection, deem it necessary, for the
preservation of our rights, to establish certain wholesome rules and
regulations. We, therefore, having first organized a constitution of
government, for ourselves, do now proceed to enact and ordain the
following laws; and in so doing we disclaim all desire or intention of
violating or treating with disrespect, the laws of our country.^'
The specific rules included organization of jury trials; regulation of Sabbath-
breaking, gambling and intoxication; and penalties for failing t o perform
chores, especially guard duty. In certain cases there were even provisions for
the repair of road, building bridges, and protection of other "public
goods."S'
It has been argued that "these ordinances or constitutions . . . may be of
interest as guides t o pioneers' philosophies about law and social organiza-
tion, [but] they do not help answer the more essential question of how, in
fact, not in theory, did the overland pioneer face problems of social disorder,
crime, and private c ~n f l i c t . " ~~ Nonetheless, it is clear that the travelers did
negotiate from Schelling points to social contracts without relying upon the
coercive powers of government. And these voluntary contracts did provide
the basis for social organization.
The Schelling points from which the individuals negotiated included a
very well accepted set of private rights especially with regard t o property.
One might expect that upon leaving the legal jurisdiction of the U.S. with its
many laws governing private property that the immigrants would have less
respect for other's rights. Moreover, since the constitutions and by-laws
seldom specifically mentioned individual property rights, we might infer that
these were of little concern to the overlanders. In his article, "Paying for the
Elephant: Property Rights and Civil Order on the Overland Trail," John
Phillip Reid convincingly argues that respect for property rights was para-
mount. Even when food became so scarce that starvation was a distinct
possibility, there are few examples where the pioneers resorted t o violence.
23
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
Indeed, it is no exaggeration to say that the emigrants who traveled
America's overland trail gave little thought to solving their problems by
violence or theft. We know that some ate the flesh of dead oxen or beef
w~th maggots wh~le surrounded by healthy animals they cuuld habe shut
Those whu suficred losses earlv in the trip and wcre able to ao hack. d ~ d
so. The disappointment and embarrassment for some must have been
extremely bitter, but hundreds returned. They did not use weapons to
force their way through. While a few of those who were destitute may
have employed tricks to obtain food, most begged, and those who were
"too proud to beg" got along the best they could or employed someone
to beg for them. If they could not beg, they borrowed, and when they
could not borrow they depended on their credit.55
The emigrants were property minded. The fact that the constitution con-
tained few references to individual property rights may well reflect the
significance of private property Schelling points.
When crimes against property or person did occur, the judicial system
which was specified in the contracts was brought into play. "The rules of a
traveling company organized at Kanesville, Iowa, provided: 'Resolved, that
in case of any dispute arising between any members of the Company, they
shall be referred t o three arbiters, one chosen by each party, and one by the
two chosen, whose decision shall he final."'56 The methods of settling
disputes varied among the companies, but in nearly all cases some means of
arbitration were specified t o insure "that the rights of each emigrant are
protected and enforced."S'
In addition to the definition and enforcement of individual rights, the
overlanders also were faced with the question of how to solve disputes
involving contractual relations for business purposes. For all of the same
reasons that firms exist for the production of goods and services, individuals
crossing the plains had incentives t o organize into "firms" with one another.
Scale economies in the production of goods such as meals and services such
as herding and in the provision of protection from Indians provided for
gains from voluntary and collective action. Again markets seemed t o func-
tion well in providing several types of contractual arrangements for this
production and protection.
A common form of organization on the overland trail was the "mess."
Similar to share-cropping arrangements in agriculture, the mess allowed
individuals t o contribute inputs such as food, oxen, wagons, labor, etc. for
the joint production of travel or meals. In this way, the mess, which allowed
the property t o remain privately owned, differed from the partnership where
property was concurrently owned. Since mess property was available for use
by all members of the mess, the-potential for conflict was great. When the
conflicts occurred, renegotiation of the contract was sometimes necessary.
When new agreements could not be reached, the mess would have t o be
dissolved and property returned t o individual owners. Since ownership
remained private, division was not difficult. Moreover, since there were gains
24 THE JOURNAL OF LIBERTARIAN STUDIES
from trade to he obtained from combining inputs, it was usually possible t o
renegotiate when violations in the contract occurred. There were, however,
cases where renegotiation seemed impossible, as in the following example of
a mess which found one of its members unwilling t o do his share of the
chores.
[W]e concluded the best thing we could do was to buy him out and let
him go which accordingly we did by paying him one hundred doll[ar]s.
He shoulder[ed] his gun, carpet bag, and blanket and took the track to
the prairie without saying good by to one of us.58
While other cases of dissolution of messes occurred, there is no evidence that
coercive power was used t o take property from rightful owners. If an indivi-
dual left one mess he could usually join another.
The other common type of organization on the overland routes was the
joint stock company. In this organization members contributed capital and
other property which was held concurrently. The Charlestown, Virginia,
Mining Company provides an example of such a company and its constitu-
tion attests t o the establishment of rules governing use of concurrent prop-
erty.59 Again it should be emphasized that these rules were voluntary
though coercion was used within the organization to enforce them.
Like the mess, when disagreements occurred within the joint stock com-
pany, renegotiation was necessary. However, since the property was held
concurrently this process was more complicated. In the first place, an
individual could not simply leave the company. Most often withdrawal
could only occur with the consent of a percentage of other memhers. But
even then withdrawal was complicated by the need t o divide the property. I n
at least one case this problem was solved by dividing all of the property and
reorganizing into messes.
When the original joint stock company of sixty men dissolved, there was
no mention of individual ownership. The property was parcelled by
assigning it to traveling units already in existence. However, in executing
the second division, the smaller group found it possible-perhaps even
necessary-to utilize the concept of personal property. In order to
accomplish their purpose, the men first transmuted the common stock
from "company" or partnership property into private property. Then, by
negotiating contracts, goods they briefly had held as individuals, were
converted back into partnership or mess property.60
All of this occurred in the absence of coercion.
Perhaps an even more revealing example of anarcho-capitalism at work is
found in the dissolution of the Boone County Company. When the eight
memhers of the company fell into rival factions of 3 and 5, dissolution
became imminent. Negotiations continued for some time until all the com-
pany property (note that none of the private property was divided) was
25 AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
divided between the two groups. When negotiations appeared at an impasse
because of the indivisibility of units and differences in quality, prices were
assigned to units and the groups resolved the issue by trade. However, a $75
claim of the majority group proved even harder to resolve. The claim
resulted from the fact that a passenger who owned two mules and a horse
and who had been traveling with the company chose t o take his property and
go with the minority. The disadvantaged majority demanded compensation.
Unable t o settle the dispute, arbitration came from a "private court" consist-
ing of "3 disinterested men," one chosen by each side and a third chosen by
the two. Their decision follows.
[W]e can see no just cause why the mess of 3 men should pay anything to
the mess of 5 men. It being. .. a mutual and sumultaneous agreement to
dissolve the original contract. The fact that Abhott joins in with the 3
men does not alter in our opinion the matter of the case-for the
dessolution being mutually agreed upon, all the parties stand in the same
relation to each other which they did, before any contract was entered
into. And Abbott might or not just as he chose unite witheither party. If
he chose to unite with neither party, then clearly neither could claim of
the other. If he united with a foreign party then who could think of
claiming anything of such a party.6'
The important point of this example is that when the Boone County
Company could not renegotiate its initial contract the members did not
resort to force, but chose private arbitration instead. The many companies
which crossed the plains "were experiments in democracy and while some
proved inadequate t o meet all emergencies, the very ease with which the
members could dissolve their bonds and form new associations without
lawlessness and disorder proves the true democratic spirit among the Ameri-
can frontiersmen rather than the opposite."6' Competition rather than
coercion insured justice.
While the above evidence suggests that the wagon trains were guided by
anarcho-capitalism, it should be noted that their unique characteristics may
have contributed t o the efficacy of the system. First, the demand for public
goods was probably not as great as found in more permanent communities.
If nothing else, the transient nature of these moving communities meant that
schools, roads, and other goods which are publicly provided in our society
were not needed, hence there was no demand for a government to form for
this purpose. Secondly, the short term nature of the organization meant that
there was not a very long time for groups t o organize t o use coercion. These
were "governments" of necessity rather than ambition. Nonetheless, the
wagon trains on the overland trails did provide protection and justice
without a monopoly on coercion, did allow competition to produce rules,
and did not result in the lawless, disorder generally associated with anarchy.
26 THE JOURNAL OF LIBERTARIAN STUDIES
Concluding Remarks
From the above descriptions of the experience of t he American West, several
conclusions consistent with Friedman's hypotheses appear.
1) The West, although often dependent upon market peace keeping
agencies, was, for the most part, orderly.
2) Different standards of justice did prevail and various preferences for
rules were expressed through the market place.
3) Competition in defending and adjudicating rights does have benefi-
cial effects. Market agencies provided useful ways of measuring the
efficiency of government alternatives. The fact that government's mo-
nopoly on coercion was not taken as seriously as at present meant that
when that monopoly was poorly used market alternatives arose. Even
when these market alternatives did become "governments" in the sense
of having a virtual monopoly on coercion, the fact that such firms were
usually quite small provided significant checks on their behavior. Clients
could leave or originate protective agencies on their own. Without
formal legal sanctions, the private agencies did face a "market test" and
the rate of survival of such agencies was much less than under govern-
ment.
The above evidence points t o the overall conclusion that competition was
very effective in solving the "public goods" problem of law and order in t he
American West. However, this does not mean that there were no disputes
that would cause one t o doubt the efficacy of such arrangements. Two
examples of civil disorder ar e often mentioned in Western history and they
must be dealt with.
The first is the very bitter feud between the Regulators and the Modera-
tors in the Republic of Texas in t he 1840b.63 What started as a disagreement
between two individuals in Shelby County escalated until it involved a
significant number of people in a large area of east Texas. I n 1839 a loosely
organized hand, later t o be known as the Moderators, was issuing bogus
land papers, stealing horses, murdering, and generally breaking the "law" of
Shelby County, Texas. To counter this lawlessness a vigilance committee
was formed under the name of Regulators. Unfortunately, "bad elements
soon infiltrated the Regulators, and their excesses in crime later rivaled those
of the Moderators. The situation evolved into a complexity of personal and
family feuds, and complete anarchy existed until 1844."M One citizen de-
scribed the situation in a letter t o a friend:
Civil war, with all its horror, has been raging in this community. The
citizens of the county are about equally divided into two parties, the
Regulators and Moderators. It is no uncommon sight to see brothers
opposed to each other. Every man's interest in this county is seriously
affected.6J
27
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM
During the period eighteen men were murdered and many more wounded.
Only when President Sam Houston called out the militia in 1844 &id the
feuding stop. Thus, for whatever reasons, in this case it appears that depen-
dence upon non-governmental forms of organization was not successful.
Another major civil disruption that should be considered is the Johnson
County War in Northern Wyoming in 1892. A group of stockgrowers and
their hired guns entered Johnson County with the express purpose of wiping
out the rustlers they believed to be prevalent there. The citizens of the
county, feeling they were being invaded by a foreign army, responded en
masse and for a short period of time a "war" did result. However, in this
case the disorder seems to have been more a battle between two "legitimized"
agencies of coercion, the state and the local government, than between
strictly private enforcement agencies. The invaders, while ostensibly acting
as a private party, had the tacit approval of the state government and used
that approval t o thwart several attempts by the local authorities to secure
state or federal intervention. Those who responded to the invasion were
under the leadership of the Johnson County sheriff and felt very much that
they were acting appropriately under the existing laws of that time." Thus
this incident sheds little light on the efficacy of market arrangements for
maintaining order.
In conclusion, it appears in the absence of formal government, that the
western frontier was not as wild as legend would have us believe. The market
did provide protection and arbitration agencies that functioned very eiTec-
tively, either as a complete replacement for formal government or as a
supplement t o that government. However, the same desire for power that
creates problems in government also seemed t o create difficulties at times in
the West. All was not peaceful. Especially when Schelling points were
lacking, disorder and chaos resulted, lending support to Buchanan's conten-
tion that agreement on initial rights is important to anarcho-capitalism.
When this agreement existed, however, we have presented evidence that
anarcho-capitalism was viable on the frontier.
NOTES
I . James M. Buchanan, "Before Public Choice," in G. Tullock, ed., Explorotions in the
Theory of Anarchy (Blacksburg, Va.: Center for the Study of Public Choice, 1972), p. 37.
2. James M.Buchanan, "Review of David Friedman, R e Mochinrry ofFreedom: Guide to
Radical Capitalism," The Journal of Economic Liferoture, Vol. X11, No. 3 (1974). p. 915.
3. E.A.J. Johnson, The Foundations of Americon Economic Freedom (Minneapolis: Univer-
sity of Minnesota Press, 1973). p. 305.
4. Laurence S. Moss, "Private Properly Anarchism: An American Variant," in G. Tullock,
ed., Further Explorotions in the Theory of Anarchy (Blacksburg, Va.: Center for the Study
of Public Choice, 1974), p. 26.
5. James M. Buchanan, Freedom in Conslirutionol Confraet (College Sta., Tex.: Texas A&M
University Press, 1977). p. 52.
28 THE JOURNAL OF LIBERTARIAN STUDIES
6. Buchanan, "Review of Machinery of Freedom," p. 915.
7. Ibid., emphasis added.
8. lbid.
9. For a longer discussion of Schelling points, see Thomas C. Schelling, The Slraregy of
Conflict (Cambridge: Harvard University Press, l960), pp. 54-58; Buchanan, "Review of
Machinery of Freedom," p. 914; and David Friedman, "Schelling Points, Self-Enforcing
Contracts, and the Paradox of Order," (unpub. Ms., Center for the Study of Public Choice,
Virginia Polytechnic Institute).
10. David Friedman, The Machinery of Freedom: Guide lo Rodical Copirolism (New York:
Harper & Raw, 1973), p. 152.
I I . Gilbert Geis, "Violence in American Society," Current Hisrory, Vol. L11 (1976), p. 357.
12. Eugene W. Hollon, Fronrier Vio1ence;Another Look (New Yark: Oxford University Press,
1974). o. x.
,. .
13. Robert A. Dykstra. The Coltle Towns (New York: Alfred A. Knopf, 1968). p. 144.
14. Paul I. Wcllman, The Trampling Herd (New York: Carrick and Evans, 19391, p. 159.
IS. Hollan, Frontier Violence, p. 200.
16. Frank Prasscl, The Wesrern Peoee Officer (Norman, Okla.: University ofOklahoma Press,
1937). pp. 16-17.
17. Prassel. Wenern Peace Officer, o. 7.
Press, 1953).
Wayne Card, Fronrier Jusrice (Norman, Okla.: University of Oklahoma Press, 1949), p.
165.
Benjamin F. Shambaugh, "Frontier Land Clubs, or Claim Associations," Annual Reporr of
the American Historical Association (1900). p. 71.
Shambaugh, "Frontier Land Clubs," p. 69.
Frederick Jackson Turner, The Frontier in American Hisrory (New York: Henry Holt and
Co.. 1920). p. 343.
Shambaugh, "Frontier Land Clubs," p. 77.
Ibid, pp. 77-78.
Quoted in Allan Bogue, "The Iowa Claim Clubs: Symbol and Substance," in V. Carstensen,
ed., The Public Lands (Madison, Wisc.: University of Wisconsin Press, 19631, p. 50.
Ibid.
Ernest Staples Osgood, The Day of the Corrlemon (Minneapolis: University of Minnesota
Press, 1929), p. 182.
Ibid, p. 118.
Louis Pelzer, The Cotrlemen's Fronlier (Glendale, Calif.: AH. Clark, 1936). p. 87.
Osgoad, Day of Coltlemon, p. 157.
Wellman, Trampling Herd, p. 346.
Robert H, Fletcher, Free Cross to Fences: the Monrono Corlle Range Slory (New York:
University Publishers, 1960). p. 65.
Prassel, Wesrern Pcacp Officer, pp. 134-141.
J. H. Beadle, Western Wilds and the Men Who Redeem Them (Cincinatti: Jones Brothem,
1882). p. 476.
Charles Howard Shinn. Mining Comoi: A Studv in American Fronlipr Governmenl (New
York: Alfred A. ~ n o ~ f , 1948):~. 167
lhid. ~~ ~
John Phillip Reid, "Prosecuting the Elephant: Trials and Judicial Behavior on the Overland
Trail," BYU Low Review, Vol 77, No. 2 (1977). pp. 335-336.
Beadle, Western Wilds, p. 477, emphasis added
Quoted in Shinn, Mining Comps, p. 111
~ ~
Shinn, Mining Comps, p. 168.
Quoted in Beadle, Wesrern Wilds, p. 478.
Quoted in Shinn, Mining Camps, p. 113.
AN AMERICAN EXPERIMENT IN ANARCHO-CAPITALISM 29
44. Marvin Lewis, ed., The Mining Frontier (Norman, Okla.: University of Oklahoma Press,
1967). pp. 10-18.
45. Shinn, Mining Camps, p. 118.
46. Ibid., p. 159.
47. Beadle, Western Wilds. p. 477.
48. Ray Allen Billington, The Fur Western Fronlier, 1830-1860 (New York: Harper & Bros.,
1956). p. 99.
49. David Morris Potter, ed., Trail t o Colifornio (New Haven: Yale University Press, 1945), pp.
~ -
16-17.
50. Reprinted in Elizabeth Page, Wogon Wesl (New York:Farrar & Rinehart, 1930). Appendix
C.
51. Constitution reprinted in Potter, Trail to California, Appendix A.
52. Page, Wq o n War, p. 118.
5 Ihiri n 119
r. ..-.
54. David J. Langum, "Pioneer .lustice on the Overland Trail," Weslern Hisrorical Quarterly,
Vol. 5, No. 3 (1974). p. 424, fn. 12.
55. John Phillip Reid, "Paying for the Elephant: Property Rights and Civil Order on the
Overland Trail." The Hunrinpton Librorv Ouarrerlv. Vol. XLI. No. 1 (1977). DD. 50-51.
. . . .
56. Reid, "~rosecutiog the ~ l e ~ h a n t , " p. 330. -
57. Quoted in Reid, "Prosecuting the Elephant," p. 330.
58. Quoted in John Phillip Reid, "Dividing the Elephant: the Separation of Mess and Joint
Stock Property on the Overland Trail," Hasrings Low Journal, Vol.28, No. 1 (1976), p. 77.
59. See Potter, Trail lo Colfirnio, Appendix A.
60. Reid, "Dividing the Elephant," p. 79.
61. Quoted in Reid, "Dividing the Elephad," p. 85.
62. Owen Cochran Coy, The Great Trek (San Francisco: Powell Pub. Co., 1931). p. 117.
63. See Card, Frontier Justice; Hollon, Fronlier Violence; and Hugh David Graham and Ted
Robert Gurr, eds., The History of Videnee in America: Hislorieol ond Compororive
Perspecrives (New York: Prager, 1969).
64.Hollon, Frontier Violence, p. 53.
65. Quoted in Card, Fronlier Justice, pp. 35-36.
66. See Helen Huntington Smith, The War on the Powder River: the Hixlory ofon lnsurreclion
(Lincoln, Neb.: University of Nebraska Press, 1966).
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Drawing on the unIinished work oI Samuel Edward Konkin III
with a Ioreword by Brad Spangler
!"!#$%&#'(
This work is dedicated to Sam, who got the ball rolling.
!"#$%"#&
The very term evokes mental imagery, and rightly so, oI bloody tyrants
and their apologists Irom the killing Iields oI Cambodia to the
massacre in the Katyn Forest, Irom statist dupes calling Ior more
government power to "Iight poverty" to Trotsky's bastard ideological
grandchildren that are called "neo-conservatives."
It has been a Iig leaI Ior banditry and the ravening twin thirsts Ior power
and blood. It has been the mantra oI those who would conspire to realize
Orwell's nightmare vision oI a totalitarian boot Iorever stomping on a
human Iace.
I'm reIerring to the other war the Class War.
Marxist doctrine held, in a nutshell, that the relationship between the
common people (the proletariat) and the elite (capitalists) was a continu-
ation oI the master and slave relationship oI ancient times and that
any means, regardless oI how ostensibly evil it may appear, was
justiIiable in addressing that iniquitous inequity.
With the meltdown oI nearly all avowedly Marxist states in the late
1980s and early 1990s, the notion oI a Class Struggle was supposed to
be consigned to the dustbin oI history along with the rest oI the smoke
and mirrors oI Marxist ideology.
There's only one problem, though Marx's analysis oI the world
around him was partly wrong and partly right. Where there is truth, there
is relevance. It is time Ior libertarians to dust oII the notions oI class
struggle, class consciousness, and class warIare in order to place them
within an increasingly sophisticated libertarian/anarchist ideological
Iramework under the primacy oI the Zero Aggression Principle.
One Ilaw in Marx's thinking, you see, was his theory oI exploitation.
Libertarians recognize that there is nothing inherently "exploitative" in
any genuinely voluntary agreement, such as agreeing to work Ior a
wage. Likewise, there isn't anything virtuous in subtly coercing
compliance with demands Ior labor to be perIormed on dictated terms,
including wage rates. Where Marx was right in his analysis is that under
State Capitalism (as opposed to a truly Iree market) there is an
exploitative relationship between the moneyed interests and the common
people. He misidentiIied the oppressor class, though.
What is this actual oppressor class, you ask? The actual oppressor class
is the "political class" as originally identiIied by the Frenchmen Charles
Comte and Dunoyer over 150 years ago. By the "political class" it is
meant those who draw their livelihood not Irom the Market, but Irom the
State. The political class is the parasitic class that acquires its livelihood
via the "political means" through "conIiscation, taxation, and other
Iorms oI coercion." Their victims are the rest oI us the productive
class those who make their living through peaceIul and honest means
oI any sort, such as a worker or an entrepreneur.
State Capitalism, which most conIuse with a Iree market, is most prop-
erly understood as a Iorm oI Socialism in a Hayekian sense oI statist
control. That is to say, it is banditry under guise oI law. It would also be
economically accurate to label it Fascism, Mercantilism, or Corporate
Statism. Conversely, a truly Iree market (or Capitalism in the Randian
sense oI non-aggression minus Rand's own personal Ietish Ior Big
Business) would, I maintain, bear a striking similarity to the vision oI
anti-state socialists and distributists.
Wally Conger has distilled in the accompanying text the essence oI
Samuel Edward Konkin III's unIinished exposition oI this class theory,
!"#$%&'()#*+$,(-,$.%&'. I'm deeply honored to present !"#$%&+()/,&&
012#$3.
4(5$,6(78,*"/2$
!"#$%&'(#)%"
In the U.S., 'only rightist kooks and commies talk about ruling classes
and class structures, the late Samuel Edward Konkin III remarked back
in the 1980s.
Konkin was neither a rightist kook nor a commie. But his theory oI
ruling classes and class structures remains today a brilliant libertarian
alternative to tired Marxist theories oI class struggle. And that theory
may serve as the Ioundation upon which to build a strong, revitalized
libertarian movement.
Born in Saskatchewan, Canada, on July 8, 1947, Sam Konkin (known
also to intimates and others as 'SEK3) was a high-proIile leader in the
'modern libertarian movement`s second generation. He was a disciple
oI Murray N. Rothbard, arguably the most vital member oI the
movement`s Iirst generation. In Iact, Konkin was a consistent, radical
Rothbardian, who oIten outRothbarded the great Murray himselI. SEK3
called his extreme Rothbardianism which advocated a stateless
society oI peaceIul black markets agorism.
For more than two decades, Konkin promised to produce a book titled
Counter-Economics a mammoth, scholarly work that, he swore,
would be to agorism what Das Kapital was to Marxism. But the volume
never appeared. Konkin did, however, author a major strategic guide to
achieving his agorist dream New Libertarian Manifesto which
became Ior his newborn Movement oI the Libertarian LeIt what The
Communist Manifesto was to communism, or what The Port Huron
Statement had been to the early New LeIt movement in the 1960s. In
addition to this maniIesto, SEK3 published, over a 30-year period, such
'underground libertarian publications as New Libertarian, New Liber-
tarian Notes, New Libertarian Weeklv, Strategv of the New Libertarian
Alliance, The Agorist Quarterlv, and New Isolationist. It was through
these periodicals that Konkin elaborated on his philosophy in disorga-
nized detail.
A primary tenet oI agorism was its unique theory oI classes. In an article
titled 'Cui Bono? Introduction to Libertarian Class Theory (see
Appendix), published in New Libertarian Notes #28 in 1973, Konkin
concluded:
1. The State is the main means by which people live by plunder; the
Market, in contradistinction, is the sum oI human action oI the pro-
ductive.
2. The State, by its existence, divides society into a plundered class
and a plundering class.
3. The State has historically been directed by those who gain most by
its existence the 'upper class, Ruling Class, Higher Circles, or
'Conspiracy.
4. The Higher Circles will Iight to keep their privileged status, and
have done so, against libertarians seeking their overthrow and the
restitution oI their plunder to those Irom whom it was taken.
5. Politicians operate as 'gladiators in the aptly named Political
Arena to settle disputes among the Higher Circles (which are not
monolithic).
Ten years later, Konkin began work on a book to distinguish Agorist
Class Theory Irom Marxist Class Theory called Agorism Contra
Marxism. Only an introduction and Iirst chapter were ever published (in
Strategv of the New Libertarian Alliance #2), and the book like most
other SEK3 projects was leIt unIinished at the time oI his death in
2004.
This brieI volume represents my attempt to summarize (and somewhat
update) that material.
Wallv Conger
!"#$%&'()*#$+,$-&*.'/0
Marxism is dead. This is acknowledged almost everywhere, with the ex-
ception oI university campuses and among stodgy Old LeItists and unin-
Iormed media pundits. 'The |Marxist| dream is dead, wrote Samuel
Edward Konkin III. 'The institutions move on, decadent zombies,
requiring dismemberment and burial. The gravediggers oI capitalism`
approach their own internment.
Marxism Iailed on many Ironts, perhaps on all Ironts. Most Iundamen-
tally, though, its Iailure was economic. Marx`s 'map oI reality his
class theory was Iatally Ilawed, and economics was !"# measure by
which his philosophy could be checked with reality. The Iailure oI its
economics led inevitably to Marxism`s Iailure to live up to its political
and historical predictions. Wrote SEK3:
'Remember well that Marx outlined history and brooked no
signiIicant wandering Irom the determined course. Should History
not unIold according to the $#!#%&'(#$ pathway scientiIically`
obtained, )** Marxist theoretical structure crumbles. ...
'Marxism Iailed to produce a workable model oI reality.` On the
other hand, it has won the hearts and souls oI billions in the past
century. In order to bury Marx, it is necessary to deal with his
apparent success, not his Iailures. His strong points must be over-
come, not his weak, iI |radical Rothbardians, agorists| hope to
replace his vision as the prime inspiration oI the LeIt.
!"#$%&'()*+$,--#&.
Karl Marx himselI asserted that should History Iail to bear him out, he
would admit he was wrong.
History has passed judgment.
Just as Ludwig von Mises Iorecast in his landmark book !"#$%&$'(
(1922), in which the impossibility oI economic calculation under Marx-
ist statism was demonstrated, Marx`s economics Iailed horribly. This
economic Iailure led inevitably to the Iailure oI Marx`s political and
historical predictions, and Marxist-controlled institutions today coast on
intellectual capital and historical inertia.
But Marxism ')$&& won the hearts and souls oI billions in the past
century, and continues to do so among many even now. Why? What is
Marxism`s appeal? Samuel Edward Konkin III wrote:
'The most appealing part oI Marxism may well have been the
vision oI sociopolitical revolution as a secular apocalypse. While
others oIIered explanations oI Revolution, only Marx gave it such
meaning. No longer were the oppressed to merely oust the old
regime to bring in a new regime brutal in a slightly diIIerent way,
but )*+ Revolution would make things so great that no Iurther
revolution was necessary. Marx`s legerdemain was actually
proIoundly conservative; once )*+ Revolution was over, there
would be no more. Even diehard monarchists Ilinched Irom that
much stasis.
'Yet the combination was unbeatable to motivate political
activists: one all-out eIIort and then home Iree. More realistic
presentations oI Revolution tended to excite less dedication and
commitment.
But the truth remains: today, Marxism is bankrupt. On the LeIt, Iaith is
gone, morale is low, and activism is paralyzed. The LeIt needs a new
ideology to supplant its Iailed and discredited Marxism. Agorism the
purest, most consistent, and revolutionary Iorm oI libertarianism is
that supplanting ideology. Agorism can motivate and direct the
underclass`s struggle against the overclass and return the LeIt to its
radical anti-state, anti-war, pro-property, pro-market historical roots.
Explained SEK3:
'Agorism and Marxism agree on the Iollowing premise: human
society can be divided into at least two classes; one class is
characterized by its control oI the State and its extraction oI un-
earned wealth Irom the other class. Furthermore, agorists and
Marxists will oIten point to the same people as members oI the
overclass and underclass, !"#!$%&''( agreeing on what each
considers the most blatant cases. The diIIerences arise as one
moves to the middle oI the social pyramid.
'Agorists and Marxists perceive a class struggle which must con-
tinue until a climactic event which will resolve the conIlict. Both
sides perceive select groups which will lead the victims against
their oppressors. The Marxists call these groups oI high class
consciousness vanguards` and then extract even more aware
elements designated elites oI the vanguard.` Agorists perceive a
spectrum oI consciousness amongst the victims as well, and also
perceive the most aware elements as the Iirst recruits Ior the
revolutionary cadre. With the exception oI intellectuals,` the
Marxists and agorists sharply disagree on who these most
progressive elements are.
!"#$%"&'"&()'(*+",-&)(./+&&(01#'"2
Although today`s academics largely credit the doctrine oI class conIlict
to Marx and Engels, historian Ralph Raico has Ior many years advanced
the 19th Century classical liberal exploitation theory oI Comte and
Dunoyer as a much superior, more correct precursor to the Marxist class
model. However, Konkin begins his examination oI class theories much
earlier than Comte-Dunoyer or Marx. He wrote:
'Rome had three citizen classes and a Iourth alien class written
into its legal codes. Medieval Europe continued the concepts and
much oI the rest oI the world had its versions. The upper class was
the nobility, that is, the royalty and aristocracy, who controlled the
land and directed its resources. The lower class were those who
worked that land, peasants, serIs, villeins, !"#. Most people Iit in
the lower class but those that Iit in neither were, at least in
numbers, at least as numerous as the upper class. Many were
merchants, and as they turned villages into towns and then large,
powerIul cities, they were given the term Middle Class or terms
meaning city-dweller: burger, bourgeois, !"#.
Enter Comte, Dunoyer, and the rest oI the 'French school. But we will
get to libertarian (and agorist) class theory later.
First...Karl Marx.
!"#$%&'()*"&&+&
Marx recognized that the millennium-old class structure oI Europe was
drastically and noticeably changing and that he lived in a revolutionary
time. As SEK3 explained:
'The old order was making way Ior a new one. The Aristocracy
was on its way out, either to liquidation (as in France and the U.S.)
or to vestigial status, kept around Ior ceremonial purpose by a
sentimental bourgeoisie (and lower classes) as in England. The
bourgeoisie was in the ascendancy in the Iirst halI oI the nineteenth
century Marx`s Iormative and most active years.
'Future events could and were explained by this class struggle
theory: the Europe-wide rebellion oI 1848 swept away much oI
aristocratic power restored aIter Napoleon`s deIeat; the American
Civil War was the Northern bourgeoisie`s way oI smashing the
remnant oI landed aristocracy preserved as by the South.
'While this phenomenon so far was widely acknowledged (though
it applied poorly to the Franco-Prussian War oI 1870-1), Marx was
as interested in the transIormation oI the Lower Class as in that oI
the Upper Class. Peasants were being driven oII their Iarms, serIs
were given their Ireedom to go to the cities to become industrial
workers. And here was the Iocus oI Marx`s insight.
First, based on Adam Smith`s Labor Theory oI Value, Marx saw the
evolving workers as the only real productive class. He saw the bourgeoi-
sie evolving into a smaller, aristocratic group that held ownership oI the
new means oI production: Iactories, assembly lines, distribution/
transportation systems, etc. The world, Marx said, was being neatly
divided between a non-productive class (the Iormer bourgeoisie, now
capitalists) and a productive class skilled in using capital goods but not
owning them (the !"#$%&'"('&). Capital would control the State. To Marx,
this was the world oI the Iuture, as evident in his present.
Marx`s second insight was based on Hegel`s dialectical materialism.
History was an ongoing clash oI ideas: the thesis existed, the anti-thesis
rose in opposition, and the clash created a synthesis (a new thesis).
Wrote SEK3: 'This is why Marxist sloganeers always call Ior struggle`
it`s all their theory allows them to do!
So just as the bourgeoisie ousted the aristocracy to create capitalism (the
synthesis), Marx declared that the new proletariat would oust capital and
synthesize into, well, nothing. The proletariat victory, Marx predicted,
would eventually end classes and class conIlict. Granted, the proletariat
(or, rather, its vanguard elite) would control the State temporarily. But
once classes vanished and there was no class conIlict to repress, the
State would 'wither away.
!"#$%&'()*+$,()+)-.#$'/$01(2)*+$,31**$!"#'(4
Marx`s Class Theory Iailed to see that those workers classically
considered proletariat would become growingly obsolescent. In North
America, unionized skilled workers are in decline, being absorbed by
new entrepreneurship (Iranchising, independent contracting and consult-
ing), the service industry, scientiIic research and development, increased
managerial Iunction without human labor underneath Ior exploitation,
and bureaucracy. Wrote SEK3:
'The entrepreneurial problem is unsolvable Ior Marxism, because
Marx Iailed to recognize the economic category. The best Marxists
can do is lump them with new, perhaps mutated, capitalist Iorms.
But iI they are to Iit the old class system, they are petit bourgeois,
the very group that is to either collapse into proletarians or rise into
the monopoly capitalist category. Small business should not
increase in the advanced, decadent stages oI capitalism.`
Marxism also does not deal with the persistent Counter-Economy (i.e., a
peaceIul black market or underground economy). There is a spectrum oI
the Counter-Economy 'tainting workers, entrepreneurs, and even
capitalists. Said Konkin:
'Scientists, managers, even civil servants do not merely accept
bribes and Iavors but actively seek second, unreported employment
in the black market.` And the more socialist` the State, the bigger
the nalevo, black work` or underground` component oI the econo-
my. ... |T|his turns Marx on his head` ... : advanced capitalism` is
generating runaway Iree-enterprise (the Old-Fashioned kind) in
reaction; the more decadent (statist) the capitalism, the more
virulent the reaction and the larger the Counter-Economy.
'But even worse is the class oI Counter-Economists. That is, by
Marxist class structure, the black marketeers cannot be a class:
workers, capitalists and entrepreneurs in active collusion against a
common enemy, the State. True, many do not perceive themselves
as in a common class and some even try to deny their black`
activities even to themselves, thanks to religious and social guilt
induction. And yet, when the agents oI the State appear to enIorce
the laws` oI the Power Elite, the Counter-Economists Irom tax-
dodging businessman to drug-dealing hippie to illegal alien to
Ieminist midwiIe are willing to signal each other with the
universal: Watch it, the Iuzz/pigs/flics/federales/etc.!` ...
'Even in extreme cases, the commonality oI the Counter-
Economist has generated an economic determinism as strong as
any Marx considered to weld class unity.` But this is still not the
worst.
'This class unity is not that oI a workers` class (though workers are
heavily involved) nor oI a capitalist class (though capitalists are
involved) nor even oI a ruling class this class is based on the
commonality oI risk, arising Irom a common source (the State).
And risk is not proletarian (or particularly capitalist); it is purelv
entrepreneurial.
'Again, to make it clear, iI the entrepreneuriat` are tossed into the
capitalist class, then the Marxist must Iace the contradiction oI
capitalists` at war with the capitalist-controlled State.
'At this point, Marx`s class analysis is in shreds. Clearly,
oppression exists, but another model is needed to explain how it
works.
!"#$%&'%"'()*+',,)-('+.,",
Marx`s class analysis, with its recurring problem oI the cross-class na-
ture oI statists and anti-statists, lies in shreds. Clearly, oppression exists,
but another class model is needed to explain how it works.
The Libertarian Class Model advanced by Murray N. Rothbard is based
on the relation oI the individual to the State, which springs Irom Franz
Oppenheimer`s paradigm oI the evolution oI the State. The sweep oI
history, Oppenheimer wrote, was a long account oI the parasitic class
continually transIorming itselI with new religions and ideologies to
justiIy its existence and repeatedly hoodwink the productive class into
serving it. As SEK3 explained:
'Today the State uses democracy (victim participation in his own
plunder), liberalism (leash the State to make it more palatable),
conservatism (unleash the State against enemies` commies or
capitalists, perverts or straights, heretics or orthodox believers,
diIIerence 1 or diIIerence 2), and other nostrums, snake-oil or anti-
concepts to beguile its victims into accepting continued plunder
(taxation), murder (war and execution), and slavery (conscription
and taxation again).
Socialism, including Marxist variants, is just another dogma used to
justiIy the State`s existence, and it is one oI the most appealing.
Almost all libertarians accept that the State divides society into two
classes: those who gain by the existence oI the State and those who lose.
Most libertarians also agree that society would be better oII iI the State
were eliminated or at least shrunk signiIicantly. But despite eIIorts oI the
late Rothbard and others to raise libertarian class consciousness, most
American libertarians seem to Iind discussion oI class theory oIIensive,
'impolite, and 'not respectable. They appear to believe that only right-
wing kooks and commies talk about ruling classes and class structures.
Nevertheless, eIIorts to expand Libertarian Class Theory into a
comprehensive model have continued.
!"#$%"&'($)*+,"+$"-'.&"//'0-"&1/$/
Murray Rothbard himselI continued to expand upon Libertarian Class
Theory. His roots in the Old Right had introduced him to populist
'bankers conspiracy theories and the like. Added class viewpoints
came Irom LeIt-statists and earlier anarchists. What he discovered was
that the proponents oI ruling classes, power elites, politico-economic
conspiracies, and Higher Circles pointed to roughly the same gang at the
top oI the sociological pyramid.
Rothbard introduced the work oI three LeIt Revisionist analysts to
Libertarian Class Theory: Gabriel Kolko, Carl Oglesby, and G. William
DomhoII.
Historian Kolko`s !"#$%&'()*(+),-."/01#-% detailed how 'capitalists
thwarted the relatively Iree marketplace oI the late 19th century and
conspired with the State to become 'robber barons and monopolists.
Rothbard`s adoption oI the Kolko viewpoint severed the alliance be-
tween radical libertarians and Iree-market apologists Ior conservatism.
Oglesby, a Iormer president oI Students Ior a Democratic Society, co-
authored +),10#,%.,1(0,2(+'0,3. in 1967, which argued Ior an alliance
between the New LeIt and the libertarian, non-interventionist Old Right
in opposing imperialistic U.S. Ioreign policy. In !'.(40,5..(0,2(+)67)8
90" (1976), Oglesby tied in current assassination-conspiracy theories to
present a division in the ruling class. Important Ior both Rothbard and
Oglesby was the division within the Higher Circles; the internal conIlict
between those controlling the State maniIests itselI in political election-
eering, corruption and entrapment (Watergate), assassination and,
Iinally, outright warIare. Wrote SEK3: 'The class consciousness oI the
superstatists, while high, does not include class solidarity.
What were the 'Higher Circles? The term came Irom DomhoII, a
research proIessor oI psychology, who described them as a subtle
aristocracy with similar mating habits and association characteristics
previously seen in other holders oI State power and privilege. Rothbard`s
discovery and dissemination oI DomhoII`s work provided a solid base
Ior his Power Elite analysis.
In nearly every ruling-class theory, the top oI the statist pyramid was
occupied by David RockeIeller`s interlocking-directorate corporate
control oI U.S. and international Iinance and the band oI Court Intellec-
tuals and corporate allies Iound in the Council on Foreign Relations, the
Trilateral Commission, and lesser-known groups. Once a ruling group
was identiIied, its nature could be examined Iurther and its actions
observed and eventually predicted.
Two Iormidable blocks have prevented even the radical libertarians
Irom oIIering a comprehensive class model to compete with essentially
dead Marxist alternatives. The Iirst block is a 'culture lag, most notably
in the U.S., where talking about classes is perceived as 'oIIensive and
'impolite. As SEK3 remarked, 'Only rightist kooks and commies talk
about ruling classes and class structures.
The second roadblock is simply the limitation oI libertarian theory. With
the exception oI agorists, even most radical libertarians see a political
solution to statism. Wrote Konkin:
'In building political coalitions to seize the apex oI State control, it
pays not to look too closely at the class interests oI your backers
and temporary allies. ...
'This limitation can be understood in another way. When libertar-
ian ideologues attack alleged libertarians Ior not Ireeing them-
selves oI State institutions, State subsidies, or actual State jobs,
they reply tu quoque. That is, how can the purist` libertarians
enjoy the supposed beneIits oI State roads, monopolized postal
delivery and even municipal sidewalks and then accuse those
wearing a Libertarian label oI selling out by getting elected to
oIIice, accepting tax-collected salaries and wielding actual political
power on the way to withering away` the State, no doubt.
'Agorists have had no such problem with a distinction, nor do they
Iind any disjunction between means and ends. Furthermore, the
simple premises oI agorist class theory lead quickly to sharp
judgments about the moral nature (in libertarian theory) and
practical nature oI any individual`s human action. That is, agorists
have a comprehensive class theory ready to supplant the Marxist
paradigm which also avoids the Ilaws in semi-libertarian halI-
hearted theory and its attendant compromises. As to be expected, it
begins with Counter-Economics.
!"#$%&'()*+&&(,-.#$/
Murray Rothbard took Franz Oppenheimer`s distinction between the
political means oI gaining wealth (State theIt) and the economic means
(production) and then portrayed them as Power vs. Market (in his book
Power and Market). UnIortunately, most libertarians haven`t applied
Rothbard`s concept completely and thoroughly. Explained Konkin:
'Since many libertarians arrived at anarchy Irom the limited-
government, classical liberal position, they retain a sort oI three-
cornered concept oI struggle: the State at one apex, real` criminals
at a second, and innocent society at a third. Those who commit
victimless crimes, in the minarchist view, may oIten be put in the
criminal class not Ior their non-crime victimless act but Ior
avoiding trial by the State and remaining at large. Again, some
anarchists have yet to entirely Iree themselves Irom this liberal
statist hangover.
'Remember, the liberal statists want to restrain the State to in-
crease the production oI the host to maximize eventual parasitism.
They control their appetites` but continue the system oI plunder.
The recent political example oI supply-side economics starkly
illustrates the basic statist nature oI such ideas: the tax rate is
lowered in order to encourage greater economic production and
thus a greater total tax collection in the long run.
Likewise, 'Iree-enterprise conservatives, and 'libertarian minarchists
call Ior retention oI the State, however restricted or restrained. They are
the enemv oI the agorists, the Iree market, and complete liberty. They
Iall on the statist side oI the class line. 'The libertarian rhetoric they
oIIer, Konkin wrote, 'may be turned` or continued to consistency in
winning over conIused and marginal potential converts but they oIIer
no material substance Ior Ireedom. That is, they are obfectivelv statists.
What is meant when a person or group or people are called obfectivelv
statist? To agorists, the term is used Ior those who emulate the State by
murdering, stealing, deIrauding, raping, and assaulting. 'These red
marketeers` (dealing in blood, not gold or trade goods), SEK3
explained, 'are best looked upon as degenerate Iactions oI the ruling
class, in contention with the State`s police as the Cowboys Iight the
Yankees, the Morgans Iight the Rothchilds or the RockeIellers, and the
Soviet statists Iight the American statists. These 'red marketeers, say
agorists, are criminals.
At the same time, all so-called (by the State) 'criminals (or criminal
acts) that do not involve initiation oI violence or the threat oI it
(coercion) are counter-economic. Since they run counter to the interests
(real or perceived) oI the State, and are usually productive, they are
Iorbidden by the State. They are, thereIore, obfectivelv agorist and thus
obfectivelv revolutionarv.
Wrote Konkin:
'Agorist class theory has the best oI both positions: a sharp class
line and a graduated spectrum. Individuals are complex and
conIused. An individual may commit some Counter-Economic acts
and some statist ones; nonetheless, each act is either Counter-
Economic or statist. People (and groups oI people) can be classi-
Iied along a spectrum as to the predominance oI agorism over
statism. Yet at each given moment, one can view an action, judge it
immediately, and take concrete counter-action or supportive action,
iI desired.
What about motivation, awareness, consciousness oI actions and their
consequences, and proIessions oI agreement? They are irrelevant; agor-
ists judge one solely by one`s acts. And one is responsible Ior Iully re-
storing one`s victims to the pre-aggression state oI being Ior each and
every act (see New Libertarian Manifesto, chapter 2). Konkin explains:
'Regular, repeated patterns oI aggression make one a habitual
criminal a statist (or pure statist`). These people earn no
wealth and have no property. Their loot is IorIeit to revolutionary
agorists as agents oI the victims. The pure statist subclass in-
cludes all political oIIiceholders, police, military, civil service,
grantholders and subsidy receivers. There is a special subclass oI
the pure statists who not only accept plunder and enIorce or main-
tain the machinery oI the State but actually direct and control it.
In socialist` countries, these are the top oIIiceholders oI the
governing political party who usually (though not always) have
top government oIIices. In the capitalist` countries, these super-
statists seldom appear in government positions, preIerring to
control directly the wealth oI their state-interIaced corporations,
usually banks, energy monopolists and army suppliers. Here we
Iind the Power Elite, Higher Circles, Invisible Government,
Ruling Class and Insider Conspiracy that other ideological
groupings have detected and identiIied.
'Towards the other end oI the spectrum |Irom statists| are Iull-
time counter-economists, SEK3 explained. 'They reject govern-
ment oIIerings and disregard State regulations. II they report an
income, it is a tiny proportion oI what they actually earn; iI they
Iile a report, it`s highly misleading but plausible. Their occupa-
tions are IulIilling demand that the State strives to suppress or
exterminate. They not only act Ireely, but oIten heroically.
Just as the superstatists understand the State`s workings and use it con-
sciously, there exist those at the counter-economic end oI the spectrum
who understand the pure libertarian consistency and morality oI their
acts; these are the agorists. 'Against the Power Elite is the anti-power
elite the Revolutionary Agorist Cadre (or New Libertarian Alliance),
Konkin wrote.
But what oI the 'middle class on the spectrum? What oI those who mix
commission oI !"#$ counter-economic acts (black spots) with !"#$
statist acts (white spots), their lives summed up by grayness? Konkin
described the middle-class this way:
'To the statists, they are the victims, the herds oI cattle to be
slaughtered and sheep to be sheared. To the Agorists, they are the
external marketplace, to receive nearly everything in trade but
trust.
'And some day they shall either take control oI their lives and
polarize one way or the other, or Iail to do so and shall stagnate in
the statist swamp or be borne away on the winds oI revolutionary
change.
Konkin oIIered a scenario, using agorist class theory, to illustrate the
diIIerence between a limited-government libertarian and an agorist:
'Consider the individual standing at the corner oI the street. He
can see two sides oI the building behind him as he prepares to
cross the street. He is hailed and turns around to see an acquain-
tance Irom the local libertarian club approaching in one direction.
The latter advocates working through the system` and is an armed
government agent. Walking along the other side oI the building is
another acquaintance, same age, gender, degree oI closeness and so
on, who is a practicing counter-economist. She also may be armed
and is undoubtedly carrying the very kind oI contraband the State`s
agent is empowered to act on. Seeing you, the Iirst individual
waves and conIirms she indeed has the illegal product and is
about to run into the libertarian statist` at the corner. Both are
slightly distracted, looking at you.
'The situation is not likely to happen too oIten but it`s quite possi-
ble. Only the removal oI complicating Iactors` is contrived. II you
Iail to act, the counter-economist will be taken by surprise and
arrested or killed. II she is warned, she may at this last-minute
elect to deIend herselI beIore Ilight and thus injure the agent.
You are aware oI this and must act now or Iail to act.
'The agorist may take some pains to cover his warning so that he
will not get involved in a crossIire, but he will act. The socialist
has a problem iI the State agent works Ior a socialist state. Even
the libertarian` has a problem. Let`s make it really rough: the State
agent contributes heavily to the local libertarian` club or party (Ior
whatever reasons; many such people are known to this author).
The counter-economist reIuses to participate except socially to the
group. For whose beneIit would the political libertarian` act?
'Such choices will increase in Irequency when the State increases
repression or the agorists increase their resistance. !"#$ are likely
in the near Iuture.
'Agorist class theory is quite practical.
!"#$%&'()#*+'%#,&(-#$(./$0%&'(1$#2*34&
./$0%&'(1$#2*34: The revolutionary class appears to work against its
own interest; the proletariat support reactionary politicians.
!"#$%&'()#*+'%#,: The Counter-Economic class cannot work against its
interests as long as it is acting counter-economically. Those supporting
statists politically have internal psychological problems without doubt,
but as a class, these acts dampen the weakening oI the State marginally.
(Someone who earns $60,000 tax-Iree and contributes up to $3000
politically is a net revolutionary by several thousand dollars, several
hundred percent!)
---
./$0%&'(1$#2*34: 'Revolutionary States keep 'selling out to
reaction.
!"#$%&'()#*+'%#,: There are no such states. Resistance to all states at all
times is supported.
---
./$0%&'(1$#2*34: Revolutionary parties oIten betray the victimized
class beIore taking power.
!"#$%&'()#*+'%#,: There are no such parties; resistance to all parties at
all times is supported.
---
./$0%&'(1$#2*34: Little objective relieI can be accomplished by
reIormist action. (Agorists agree') ThereIore, one must await the
revolution to destroy the system. Until then, revolutionary activities are
premature and 'adventurist. Still, the productive class remains victim-
ized until the class reaches consciousness !"#!#$%&'(.
!"#$%&'()#*+'%#,: Each individual may liberate himselI immediately.
Incentives Ior supporting collective action are built in and grow as the
selI-conscious counter-economy (agora) grows.
---
-.$/%&'(0$#1*23: The class line blurs with time against prediction.
!"#$%&'()#*+'%#,: Class lines sharpen with time as predicted.
!""#$%&'
!"#$%&'&(()$*+,%-.*&,$(*,(/&0#+*1+&1$(23144(56#,+7(89:;<=
By Samuel Edward Konkin III
Libertarianism has been denounced by William F. Buckley as 'extreme
apriorism (in reIerence to Murray N. Rothbard in 'Notes Toward an
Empirical DeIinition oI Conservatism). Indeed, Libertarians can will-
ingly concede the substance oI the charge, iI not the pejorative implica-
tion oI heresy. The Iundamental libertarian premise oI non-aggression
oI unbending opposition to all Iorms oI initiatory violence and coercion
to liIe and property gives the libertarian analyzing his societal context
and seeking out ways oI dealing with it a logical 'razor oI exceptional
keenness. With it, he can slash away the Iat oI special pleading oI vari-
ous ideologies and retain the lean meat oI genuine contributions to his
understanding. Perhaps no other ideology, not even Marxism, has such a
quality oI over-all integration and selI-consistency, as indicated by the
startling rapidity that this new and complex theory is transmitted to new
libertarians.
What Iollows is an excellent example oI the use oI 'Rothbard`s Razor
in synthesizing an approach and understanding in an area almost devoid
oI libertarian sources.
The author readily acknowledges that his only original contribution to
this Iield is one oI collation and organization oI scattered writings
absorbed during his intellectual maturation which was Iortunate enough
to coincide with that oI Libertarianism. Above all, acknowledgement is
accorded to !"#$%&'#()*(&*+$,-(./, Dr. Murray N. Rothbard, and the
scholars he inspired.
I. Economic Analysis of Libertarian Class Theory
Dr. Rothbard has noted the inspiration he gained Irom John C. Calhoun
that the State which we recognize as the monopoly oI legitimized
coercion divides men into two classes. The State`s systematic looting
oI the general public and subsequent distribution oI this wealth necessar-
ily distorts the allocation oI property that would exist in a Iree market.
By a Iree market, libertarians mean one in which all goods and services
are voluntarily exchanged. An analysis oI involuntary exchanges is
provided by !"#$%&'()&*'%+$, by Dr. Rothbard. At the very least, the
resources consumed by the individuals who make up the State`s bureau-
cracy constitute a net gain by these wielders oI power (or they would not
engage in the practice) and constitute a net loss to their victims even iI
the remains were distributed as equitably as possible. In practice, Iar
more is consumed by the Statists and their chosen beneIiciaries and is
lost by the victims. This is the Iundamental division observed by
Calhoun and Rothbard: the division oI society into an exploiting class oI
those who make a net gain by the existence oI the State, and an exploited
class oI those who incur a net loss by the existence oI the State.
The charge immediately arises that nearly everybody in the modern
complex mixed economy makes gains and losses Irom the State`s
actions. Separation and accounting is extraordinarily diIIicult. Libertari-
ans must agree but respond that Iirstly, one can improve the moral char-
acter oI one`s own liIe by striving to comprehend his sources oI wealth,
maximizing the non-coercive ones and minimizing the coercive ones,
and, secondly, that those enjoying or suIIering an extreme imbalance can
be discerned and dealt with. Those who are obviously suIIering heavy
oppression deserve the priority attention Irom those libertarian human-
ists concerned with aiding and relieving victims oI the State. Those who
are obviously gaining overwhelmingly by the State (the 'Ruling Class)
can be rightly suspected oI directing State policy and becoming priority
targets oI those libertarian activists interested in achieving a just society.
II. Historical Analysis of Libertarian Class Theory
Here Dr. Rothbard has drawn heavily upon the studies oI the German
sociologist Franz Oppenheimer (The State) and his American disciple,
Albert Jay Nock (Our Enemv, the State). Oppenheimer distinguished two
means oI acquiring wealth the economic means and the political
means. These correspond to wealth acquired voluntarily by the market
and to wealth acquired coercively by power.
I have been Iond oI using the Iollowing paradigm to synopsize
Oppenheimer`s thesis. PeaceIul Iarmers and agorists (agora open
marketplace) are engaged in production and trade, having judges, per-
haps priests, and chieIs who organize deIense against predatory tribes
and roving bands oI thieves. These bands oI savages raid such produc-
tive communities Ior their own parasitical gain, taking all removable
wealth, including slaves, and consuming Iixed wealth through Iire, rape,
and murder. Even iI constantly successIul, the leaders oI these raiders
soon realize that they will eventually run out oI sources oI wealth. The
Iirst step toward civilization is then taken by leaving behind enough
wealth and populace to rebuild so that they may be raided again. The
parasites cease to be Iatal to their hosts. OI course, the threat oI an
annual raid during harvest, Ior example, is somewhat discouraging to the
incentive oI the productive victims. The more enlightened barbarians
move on to the next step occupying the agorist communities, institu-
tionalizing and regularizing the plunder and rape (e.g., taxation, droit de
seigneur). These rulers seek to counter discouragement, resentment, and
rebellion by allying (or buying out) the Priests to exalt the ruling class
and to convince victims that they are actually beneIiting by the pres-
ences oI these 'protectors oI order. Later in history, this Iunction oI
creating a mind-numbing mystique is taken up by Court Intellectuals as
religion wanes.
The plunderers can arise internally, too. Perhaps the War ChieIs and
native Priests, seeing the examples around them, convince the locals that
they too need a strong standing Iorce to deIend the community against
invasion by the Ioreign States. Creating the same mystique, the protec-
tors become the plunderers and a new State is born.
Oppenheimer`s theory complements the Calhoun-Rothbard analysis
perIectly by explaining the origins oI the present-day States. For a study
oI actual modern nation-states and the operation oI their class structures,
we turn to the Revisionist Historians.
III. Revisionist Contributions to Libertarian Class Theory
World War I ruptured the liberal and radical intellectual body. Even an-
archists divided on the War Question. The anti-war group among histori-
ans began delving into the records to prove the correctness oI their
opposition and demonstrate to the more idealistic War supporters how
they were duped into serving plutocratic war 'proIiteers, political
chicanery, and closet Imperialism. The widespread disillusionment with
the Treaty oI Versailles aided such Revisionists and won general accep-
tance to their exposures. Charles Beard, Harry Elmer Barnes, Sidney
Fay, J.W. Pain, and W.L. Langer in the U.S.; J.S. Ewart in Canada;
Morel, Beazley, Dickinson, and Gooch in England; Fabre-Luce. Renou-
vin, and Demartial in France; Stieve, Montgelas, von Wegerer, and Lutz
in Germany; and Barbagallo, Torre, and Lumbroso in Italy: these histori-
ans became quite chic, especially as leaders arose in the deIeated powers
to revise the terms oI the Treaty, and 'appeasers in the victorious
powers to accommodate them.
World War II caused a new split, with Beard, Barnes, Charles C. Tansill
in the U.S., and F.J.P. Veale and A.J.P. Taylor remaining (or becoming)
Revisionist on the Second War, with others going a-whoring aIter the
new War to End All Wars. This time, the victorious powers managed to
impose a 'Historical Blackout through the extensive Court Intellectuals
inIluence in ever more State-Iinanced Universities and historical jour-
nals on the Revisionists. The courageous dissenters were viliIied as
thinly-disguised Nazi-symps, though many had impeccable liberal and
social-democratic credentials. PaciIic Front revisionism has had some
measure oI success, but European Front revisionism remains a disreputa-
ble activity.
Cold War Revisionism is accepted somewhat less than WWI but more
than WWII inquiry and exposure. Most encouragingly, the New LeIt and
'deviationist Marxist historians who were drawn into Revisionism by
their antipathy to the Vietnam War have begun looking backwards Ior
the roots oI modern Ioreign policy.
On the LeIt, Weinstein and Gabriel Kolko have integrated Revisionist
History on Ioreign policy with domestic ruling class investigation. On
the Right, the Birchers have grown gradually less hysterical in their
'Conspiracy Theory, dropping their International Communist devil-
theory Ior exposure oI the machinations oI U.S. plutocrats.
The Higher Circles by G. William DomhoII begins the synthesis oI the
varying strands oI revisionism into a single sober thesis, adding the soci-
ological surveys oI C. Wright Mills 'Power Elite investigations. Dom-
hoII, a LeItist, devotes a section oI his book to an earlier rightist
conspiracy theorist, Dan Smoot, and Iinds much oI it agreeable. Since
then, Smoot has been superseded by Gary Allen`s None Dare Call It
Conspiracv.
IV. Libertarian Class Theory - Application to Domestic Policy
Beard goes back to the American secession Irom the British Empire with
his Economic Interpretation of the Constitution. Libertarians tend to
begin with the relatively laissez-Iaire period oI the late Nineteenth
Century in the U.S., explored by Kolko in his magniIicent Triumph of
Conservatism. Kolko deviates Irom orthodox Marxism by claiming that
the wicked capitalists did not establish their rule due to inevitable con-
centration oI economic power under capitalism, but rather plotted to
gain the State`s aid in destroying an all-too-successIul competitive semi-
Iree market which threatened the long-term stability oI their proIits.
Kolko devastatingly points out that the massive regulations oI transpor-
tation and anti-trust legislation advocated by the anti-monopolistic
Progressive movement was actively supported by such powerIul busi-
nessmen as Andrew Carnegie, Mellon, Morgan, and RockeIeller. In
1905, the National Civics Federation was Iormed to combat the
'anarchist tendencies oI the laissez-Iaire oriented National Association
oI ManuIacturers (mostly small businessmen with little vested interest
wanting to grow, not stand pat). NCF members were urged to support
regulations and labor legislation to integrate the labor aristocracy as
junior partners in the emerging new ruling class. Over the years, the
Higher Circles developed the Council on Foreign Relations to inIluence
U.S. State Foreign Policy (tied internationally to similar groups in
Western Europe through the 'Bilderbergers) and the Committee Ior
Economic Development Ior U.S. State Domestic Policy.
Recently, Ralph Nader has been astonished by the discovery that most oI
the Regulatory Boards are run by the very industries they were set up to
control. One can only begin to imagine what the CFR-CED crowd is
doing with the Wage-Price Controls. The CLIC claque is made up oI
equal representation oI Big Business, Big Labor, and Government.
Surprise, surprise.
V. Libertarian Class Theory - Application to Foreign Policy
The Iinancing oI World War I has some incredible anecdotes associated
with it. For example, there were the Warburg Brothers, one Iinancing the
German War EIIort, the other the Allied EIIort. There were bauxite
mines in France which provided aluminum Ior German War Planes, and
the activities oI the 'Merchants oI Death, munitions manuIacturers
selling to all sides, would be comic iI the millions oI deaths could be
dissociated.
Modern revisionist theory begins with the attempts oI the Bank oI
England to restore the pound`s value. The massive inIlation oI the War
made it impossible to restore it to its pre-war value in gold, and exacting
reparations Irom Germany led to a hyperinIlation and crack-up boom
smashing the German economy (and led to the 1923 Putsch). The Bank`s
Ashley Montagu met with American Iinanciers in Georgia Ior the
purpose oI depreciating U.S. currency to improve the relative standing
oI the pound. Already, the British were clubbing their East European
satellites (created between the USSR and Germany by that perIidious
Treaty) into Iollowing their economic policy.
The Federal Reserve Board`s inIlation oI the Roaring Twenties (a boom
Iueled by that very same monetary expansion) led to the Crash, Depres-
sion, and Roosevelt`s Iascist NRA and IRS jackbooters raiding homes to
seize the recently outlawed metal, gold. And, oI course, the European
Iascist autarchies, ripped loose Irom the world plutocrats` control,
engaged in barter competition with their own interest in mind, and
brought on the Second World War in retaliation.
This time, the American Military-Industrial Complex was !"#
dismantled. (See James J. Martin`s $%&'('"!'(#)*'%+,"'!#( Ior a truly
horriIying speech reprinted which was given in 1940 advocating just that
and telling businessmen to get with it 'it being the coming new
world order.) A new International Threat to Peace was needed, and less
than two years aIter the end oI the Second War to End All Wars,
Churchill announced that 'an Iron Curtain has Iallen across Europe.
Considerable investigation oI plutocratic beneIiciaries oI the Vietnam
War is underway, much less so oI those beneIiting Irom the Middle East
conIlict. Some libertarians have already begun to project the interests oI
the exploiting class power elite to predict the next War.
VI. Alternative Interpretations
-.)/012
While Marxist historical economic determinism draws many scholars in
that camp to similar conclusions as those oI libertarians, it contains sev-
eral Iatal Ilaws over and above the obvious one oI economic misun-
derstanding. The necessity Ior rigid adherence to a class struggle
interpretation based on wealth possession rather than on the means oI its
acquisition and to an inevitable coming oI a proletariat revolution led by
organized labor Iorces the Marxist to judge and rationalize his conclu-
sions to Iit at all costs. Perhaps just as devastatingly, Marxism is now a
'religion justiIying the existence oI dozens oI the States in the world,
and Marxists are now playing Court Intellectuals and suppressing
Revisionists in their midst.
!"#$%&'(&')'
The 'consensus school, the dominant group oI Court Historians in the
West, deny the existence oI any classes. While there may have been
wicked exploiters in the past, they were routed and brought to justice by
the Progressive Era, the New Deal, the Fair Deal, the New Frontier, and
the Great Society, and whatever is to come. We are leIt to assume that all
these plutocrats are receiving windIalls by the Iailure oI previous
reIormers to spot all the loopholes and economic imperIections in the
Iree market.
And iI the plutocrats who gained the most Irom State intervention
supported Roosevelt, Wilson, Roosevelt, Truman, Kennedy, Johnson,
and whoever succeeds Nixon...must be a lot oI accidents, coincidences,
and the inability oI these people to perceive their own real interests but
lucking out anyways?
$"#*+&,
No one would accuse Ayn Rand oI being a competent historian or leader
oI a school oI historiography. UnIortunately, she does convey an implicit
interpretation oI history which lingers in many oI those deserting
Objectivism Ior Libertarianism. In her view, similar to the Consensus
school but inverted in moral judgment, peaceIul productive capitalists
were engaged in making everyone well oII in the Nineteenth Century,
when along came these Progressive collectivists drunk on Statism and
high on altruism, to ravish their proIits and lay their clammy hands on
their activities (strictly between consenting adults). Having absorbed too
much altruist collectivism themselves, the capitalists gave up the intel-
lectual battle Ior their Ireedom and tried to pragmatically accommodate
themselves to the new system, leading them to supporting pragmatist
thugs like Nixon`s 'plumbers.
While I certainly would not disagree with the need to straighten out a lot
oI businessmen philosophically and ethically, Rand`s ignoring (and/or
ignorance) oI the powerIul with vested interest in the State leaves the
Objectivist with the tactics oI parlor debates and pamphleteering as his
only deIense against the guns and prisons oI the Statists. What Irustra-
tion the Objectivist must Ieel hearing that Richard Nixon has read !"#$%
&'()**+, and still has not seen the light! II only David RockeIeller
would just listen to him Ior a minute...
VII. Value of Libertarian Class Theory
Several good reasons have already been suggested in this article Ior the
study and application oI libertarian class theory. Understanding the
nature oI the enemy never hurts in dealing with him. Turning over the
Rank oI Vested Interest on an issue to expose the Plutocratic worms
crawling out Irom under may turn public pressure on to Iorce the power
elite to accommodate the dissent and give up untenable activities.
Convincing New LeItists and Birchers that you are, indeed, aware oI the
problem and you can explain the Ruling Class/Conspiracy even better
should aid in recruiting. Fingering the Court Intellectuals as tools oI the
interests they were supposed to Iorsake in their supposed search Ior
Truth and Enlightenment could shake-up a Iew academies and compro-
mise the credibility oI these modern Witch-Doctors purveying their
sophisticated voodoo.
Murray Rothbard urges the libertarian activist to burn with a passion Ior
justice. II this is our Quest, then Libertarian Class Theory is indispens-
able to the discovery oI those who have visited statism upon us, and
whose blood-drenched hands are pocketing the booty.
Old Iashioned justice is needed Ior a new liberty.
This article first appeared in !"#$%&'"()*(&*+$!,)"- #28,
December 1973.]
!"#$!$%&'"('&)$
*+,$-&.-+.%'*$(&
!"#$%&'&!(%$)*+&'&!),-#(.
/001
Enforcement of Private
Property Rights in Primitive Societies:
Law without Government
by Bruce L. Benson
Department of Economics, Florida State University
If law exists only where there are state-backed cmrts and codes, then every primitive
society was lawless.' Indeed, one widely held defmition or "theory" of law is
that "the mle of law simply means the 'existence of public order.' It means organ-
ized government, operating thmugh the various instruments and channels of legal
command. In this this,al l modem societies live under the rule of law [but primitive
societies did not]."2 This definition of law characterizes the legal positivist school
of legal theorists and dominates the economics profession. Even strongly market-
oriented economists typically note that the market can function effectively only
within a system of welldehed and enforced private p mp t y rights and that govern-
ment is therefore needed to establish and enforce these "rules of the game." Any
economist who would even question that law and order are necessary functions
of government is likely to be considered a ridiculous, uninformed radical by most
of the rest of the profession. For example, Bernard Herber, in a typical public
fmance textbook, writes
The . . . function . . . of providing domestic stability in the form of law and
order and the pmtection of properly .. . could be logically opposed only by
an avowed anarchist. Since . . . [law and order is] not [a] controversial func-
tion of govenunent, . . . [it does] not require a lengthy analysis in the effort
to construct an economic case for the existence of a public sector for resource
allocation purpose^.^
Aurhor's Note: I was able to undenake this project because of suppon fmm the Institute for Human
Studies, which provided me with an F. Leroy Hill Fellowship. The paper extends and consolidates
work begun in a forthcoming bmk on Ljbeny nnd Jwice: Al t em' ves in the Provision of Lmu Md
Order with support fmm the Pacific Institute for Public Policy Research. 1 wish amank Pacific Institute
reviewen and particularly Randy Bameu for very helphrl comments and suggestions.
2 THE JOURNAL OF LIBERTARL4N STUDIES Winter
Although I would not call myself an avowed anarchist, I would suggest that it is
time for a "lengthy analysis" of the case for and against the public production
of law and enforcement.
One pbce to begin an analysis of the case for public provision of law and order
is with an examination of the anthropological literature on primitive legal systems.
These systems have been particularly troubling for the legal positivists because
they apparently represent examples of law and order without a state government.
They should be just as troubling for those economists who assume that the state
must establish and enforce private property rights. As F. A. Hayek suggested,
What we how abwt . . . ptimitive human societies suggests a different origin
and determination of law from that assumed by the theories which trace it to
the will of a legislator. . . . legal history proper begins at ton late a state of
evolution to bring out clearly the origins. If we wish to free ourselves from
the all pervasive iniluence of the intellectual presumption that man in his wisdom
has designed, or even wuld have designed, the whole system of legal or moral
rules, we should begin with a look at the primitive . . . beginnings of social
life.'
That is precisely what shall be done.
Primitive systems have been studied extensively by anthropologists and legal
scholars. What can an economist add that has not already been said? The follow-
ing examination will emphasize institutions and incentives that influence the pro-
vision of law and its enforcement. This emphasis is the contribution economists
can make to the broad subject of law and order.' Some may contend that law is
not an appropriate subject for economic analysis because law is not produced and
allocated in exchange markets.' To be sure, economics has much to say about market
institutions, but its relevance and scope ate not so narrow. Economic theory requires
only that scarce resources must be allocated among competing uses. Clearly, police
services, wurt time, and al l the other inputs into the process of law and order are
scarce and must be allocated. Beyond that, economic theory explains human
behavior by considering how individuals react to incentives and constraints. A well-
defined set of behavioral assumptions underlies such analysis, and institutions-
including but not exclusively restricted to market institutions-both provide and
are created in response to the incentives and constraints.
Primitive socities have often been analyzed from an economic perspective. For
example, Baden, Stroup, and Thurman have examined the resource management
incentives of various American Indian tribes,' while Demsetz has explained the
incentives to establish property rights and applied his analysis using examples
from American Indian history.8 Johnsen has explored the formation and protec-
tion of property rights among the Kwakiutl Indiins.9 The present discussion follows
the lead of these studies, but goes beyond their emphasis on incentives and property
right formation to discuss the legal institutions formed for the enforcement of
rights. Although in this regard it is similar to work by Friedman on the medieval
1989 BRUCE L. BENSON-PROPERTY RIGHTS LN PRIMITIVE SOCIETIES 3
Icelandic legal system,'O it emphasizes relatively more primitive systems and
develops a generalizable characterization of privately produced legal systems in
the context of both economic and legal theory. In this sense it is closer to Posner,
but the emphasis is different, as are many of the conclusions." Posner clearly
demonstrated that examination of primitive legal systems from an economic
perspective reveals that private sector institutions are capable of establishing strong
incentives that lead to effective law making and law enforcement. Here, however,
it is emphasized that the costs of violence and the benefits of order in primitive
societies were enough to induce the establishment of recognized rules of conduct
with emphasis on individual rights and private property-that is, the type of laws
necessary for maintenance of a free market system in more complex societies.
Furthermore, voluntary participatory mechanisms to enforce those rules, to
adjudicate disputes, and in contrast to Posner, to allow forfurther legal growth,
also developed.
The presentation that follows is divided into six sections. First, the concept
of law as defined by legal scholars and anthropologists is explored. Second, the
concept of government is briefly examined. Then three sections are devoted to
separate examination of three primitive societies as described in several anthro-
pological studies in order to establish the general character of privately produced
legal systems. Finally, concluding remarks are presented in the sixth section.
I. The Concept of Law
Malinowski defined law from an anthropologist's perspective as "the rules which
curb human inclinations, passions or instinctive drives; rules which protect the
rights of one citizen against the concupiscence, cupidity or malice of the ~t her . ' ' ' ~
This definition suggests that a society in which customs and social mores are widely
accepted and obeyed has a legal system even with no state government, written
constitution, or codes. Morality and law would appear to be synonymous. Legal
theorist Lon Fuller, however, differentiated between these concepts:
Morality, too,is concerned with controlling human conduct by mles . . . how,
when we are confronted with a system of rules, [do] we decide whether the
system as a whole shall be called a system of law or a system or morality.
The only answer to that question ventured here is that contained in the word
"enterprise" when I have asserted that law, viewed as a direction of pur-
posive human effort, consists in the "enterprise of subjecting human con-
dun to the governance of ~ules.""
Thus, Fuller's definition of law includes more than simply the existence of social
mores defining rules of behavior. There must be an "enterprise," and it is
"precisely because law is a purposeful enterprise that it displays structural
constancies. . . . "I' The enterprise of law generates the mechanisms of enforce-
ment, change, and dispute resolution.
4 THE JOURNAL OF UBERTANAN STUDIES Winter
Fuller's concept of law corresponds more closely to the view of law proposed
by the anthropologist Redfield, for example, than to Malinowski's. Redfield
defines law as "a system of principles and of restraints of action with accom-
panying paraphernalia of enf~rcement."~' The "paraphernalia" clearly constitute
the "structural constancies" that are the manifestations of Fuller's legal enterprise.
Primary vs. Secondary Rules
Another way to distinguish between the definitions of law proposed by anthro-
pologists like Malinowski and Redfield is to draw upon legal positivist H.L.A.
Hart's discourse on "primary" and "secondary" rules.16 Hart observed that
it is, of course, possible to imagine a society without a legislature, courts
or officials of any kind. Indeed, there are many studies of vrimitive com-
munities which nit only claim that this possib&ty is realizeb but depict in
detail the life of a society where the onlv means of social control is the general
attitude of the group towards its ownstandard modes of behavior ihterms
of . . . rules of obligation. . . . we shall refer to such a social structure as
one of primary rules of obligation."
Hart contends that for a society to function with primary rules alone, it must be
small and "closely knit by ties of kinship, common sentiment, and belief," or
"such a simple form of social control must prove defective and will require
supplementation in different ways."'n
This brings us to secondary rules designed to remedy the defects that must arise,
according to Hart, as a society becomes too large or diverse to function with only
primary rules. Hart discussed three defects that he felt were likely: (1) "uncer-
tainty," which occurs if only primary rules exist, so when "doubt arises as to
what the rules are or as to the precise scope of some given rule, there will be
no procedure for settling this doubt";19 (2) the "static character" of primary
rules, which include "no means . . . of deliberately adapting the rules to changing
circumstances, either by eliminating old rules or introducing new onesW;20 and
(3) "ineflciency," because "Disputes as to whether an admitted rule has or has
not been violated will always occur and will, in any but the smallest societies,
continue interminably, if there is no agency specially empowered to ascertain
finally and authoritatively the fact of the vi ol at i ~n. " ~~ Each of these three defects
can be remedied, Hart suggested, by supplementing primary rules with secondary
rules, and the "remedies together are enough to convert the rigime of primary
rules into what is indisputably a legal system."2z
Hart defined his secondary rules as follows:
1. The rule of recognition specifies "some feature or features possession of
which by suggested rules is taken as a conclusive affirmative indication that it
is a rule of the group to be supported by the social pressure it exerts."z3 Hart
suggested that such a rule could take a wide variety of forms, although his examples
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 5
and discussion emphasized written documents and implied recognition of a state-
like authority.
2. The rules of change establish the means by which rules are enacted through
legislation, judicial precedent, royal decree, or any number of other possible
procedures.
3. The rules of adjudication empower "individuals to make authoritative deter-
minations of the question whether, on a particular occasion, a primary rule has
been broken. "24
At first glance it appears that Hart's distinction between primary and secondary
rules is simply another way of stating Fuller's distinction between morality and
law. The rules a primitive society are governed by may come from custom or
social mores (primary rules), but for that society to have a legal system there
must be an "enterprise" that results in an authoritative enforcement mechanism,
a system of dispute resolution, and presumably a means of changing rules to meet
the changing needs of the society (secondary rules). Very substantial differences
exist between Fuller's and Hart's concepts of law, however. Hart's perception
of the law falls under the legal positivist umbrella, which typically identifies law
with the legal institutions that are observed (generally the state). Fuller, on the
other hand, has an evolutionary (or "natural law") perspective. The differences
between these views and these, their leading exponents, spawned a long running
debate of classical proportions in the legal literature. This Hart-Fuller debate,
while interesting and important, need not be detailed here, although one aspect
of it is emphasized below. Rather, Hart's points about the uncertainty, static
character, and inefficiency of a primitive society's law once that society become
relatively large or diverse will be used to provide focal points in developing the
following discussion of primitive law. It will be argued that many (probably all)
primitive societies in the context of their enterprise of subjecting certain human
conduct to control-that is, in the application of primary rules-naturally chose
to establish mechanisms that aueviated the defects of uncertainty, static character,
and inefficiency as they arose-or, in other words, to establish secondary rules.
The claim made here and demonstrated below thatprimirive legal systems had
secondary as well asprimary rules departs sharply from the conclusions reached
by the legal positivist school. One can infer from Hart, for instance, that primitive
societies generally lacked the secondary rules that designate authority to identify
primary rules and to adjudicate disputes.25 This view of primitive societies provides
the means by which legal positivists claim that state government is a prerequisite
for law and yet recognize that primitive societies functioned without such govern-
ment. Primitive societies supposedly had only primary rules, while a "true" legal
system requires secondary rules that must be established by the state.16
One particular aspect of the Fuller-Hart debate requires discussion before we
can proceed. In the context of this presentation, a major source of divergence
arises in Fuller's interpretation of Hart's specification of his secondary rule of
6 THE JOURNAL OF LIBERTARIAN STUDIES Winter
recognition. Fuller concluded that this rule implies absolute authority, which
cannot be withdrawn even when that authority is abused.27 Fuller's interpreta-
tion of Hart's rule of recognition is tempered considerably for our purposes. As
Hayek explained,
law may be gradually articulated by the endeavors of arbitration of similar
persons called in to settle disputes but who have no power of command over
the actions on which they have to adjudicate. The questions which they will
have to decide will not be whether the parties have abused anybody's will,
but whether their actions have canformed to expectations which other parties
had reasonably formed because they correspond to the practices on which
the everyday condud of the members of the gmup was based. The significance
of customs here is that they give rise to expectations that guide people's actions,
and what will be regarded as binding will therefore be those practices that
everybody counts on being observed and which thereby condition the suc-
cess of most activitie~.'~
This view of authority also characterizes Fuller's concept of law. He wrote, "there
is no doubt that a legal system derives its ultimate support from a sense of its
being 'right'. . . . this sense, deriving as it does from tacit expectations and
acceptances. . . . "29 With the view of law and authority suggested above in mind,
let us now turn to an examination of the concept of g~vernment . ' ~
11. The Concept of Government
The concept of government may be even more difficult to define than the con-
cept of law. One might defme government to mean the enterprise of or mechanisms
for law enforcement, in which case the legal positivist argument would simply
be inverted: If there is law, there is government. But that is certainly not the
popular perception of government, nor is it the view held by the legal positivists
(or most economists, for that matter). After all, Hart indicated that a society could
exist without government institutions.]'
It has been suggested that one way to distinguish a governmental from a
nongovernmental social arrangement is that government induces cooperation
through coercion, while privately arranged cooperation is achieved through
persuasion. The line between cooperation and persuasion is not a clear one,
however. The fact is that any property rights system is ultimately backed by a
threat of force and violence.12 This is clearly the case in the primitive systems
discussed below. Property rights systems require enforcement, and they cannot
be enforced if there are no incentives to accept their authority. The relative level
of coercion certainly is a factor to consider in defining government, but it is not
the only factor.
Another suggested distinction between government and nongovernment is that
a private agreement to transfer property requires unanimousconsent of all parties
involved, while less than unanimity (e.g., a majority vote, a majority vote of
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 7
elected representatives, or the decision of a king or dictator) is required for a
transfer when a government is involved. This argument is related to the coer-
cionlpersuasion definition, of course, and it is not completely satisfactory for
similar reasons. For example, we shall see that while voluntary contractual
agreements provided the basis for some primitive legal systems (also for some
medieval systems, such as those in Iceland3) and Ireland3*), kinship provided the
basis for still others. People do not necessarily unanimously agree to be in or
contribute to production by their families, however, and it is not clear that leav-
ing a primitive kinship group was easily or safely (and clearly not costlessly)
accomplished.
Because the coercion and lack of unanimity definitions of government are not
completely satisfactory, a definition of government is adopted here that emphasizes
the institutions that perform the functions of law production and enforcement-
that is, the institutions that legislate, execute, and adjudicate. In particular, govern-
ment exists when these institutions are professionalized in such a way that (1)
the primary source of income for some or all of the individuals who perform
the legal functions is derived from those functions, and (2) some or all of the
individuals involved in the production and enforcement of laws are "bureaucrats"
in the sense that their coercive powers are directly derived through some system
other than unanimous agreement of the parties affected by their actions (e.g.,
by royal appointment or appointment by an executive who has either been
nonunanimously elected or risen to authority through force). The institutional
characteristics of modern nation-states and their monarchal predecessors thus imply
the existence of g~vernment.~' This view of government implies that many of
the characteristics of modern market economies evolved while government was
e~ol vi ng. ' ~ Simultaneous evolution does not imply that state government and its
laws are necessary for the evolution of commercial law, however, and we shall
see that they are not necessary for the establishment of private property and
individual rights.)'
111. Primary and Secondary Rules Among the Yurok Indians
and Their Northern California Neighbors
Walter Goldsmidt, after studying the Yurok, Hupa, and Karok Indians and some
of their Northern California neighbors, reported ". . . a culture which reflects
in surprising degree certain structural and ethical characteristics of emergent
capitalistic Eur~pe. ")~ In this Indian society, property was universally held in
individual private ownership. Socially, these Indians were organized in households
and villages. There were no class or other inalienable group affiliations, and no
vested authoritarian position-that is no state-like government with coercive power.
Private property rights were sharply defmed. Title considerations, for example,
included (1) separation of title to different types of products; (2) ownership rights
8 THE JOURNAL OF LIBERTARIAN STUDIES Winter
within the territory of an alien group (e.g. Hupas owned property inside Yurok
territory); and (3) the division of title between persons (e.g., a fishing place could
be owned by several people and its use divided so that one person used it one
day, another the next, and so on). Ownership was complete and transferable.
Exchange was facilitated by a monetary system.
The emphasis on private property may seem surprising to those who think of
tribal society as some sort of socialist or communal system. On the contrary,
however, private property rights are a common characteristics of primitive
societies; they constitute the most important primary rules of conduct.39 After
all, as explained in detail below, law enforcement (secondary rules of recogni-
tion and adjudication) arose through voluntary cooperative arrangements. Volun-
tarily recognition of laws and participation in their enforcement is likely to arise
only when substantial benejitsfrom doing so can be internalized by each individual.
That is, individuals require incentives to become involved in the legal process.
Incentives can involve rewards (personal benefits) or punishment. Punishment
is frequently the threat that induces recognition of law established by a coercive
government, but when there is no government, incentives are largely positive.
Individuals must expect to gain as much or more than the costs they bear from
voluntary involvement in the legal system. Protection of personal property and
individual rights was apparently a sufficiently attractive benefit (along with others
detailed below) to induce voluntary participation among the Yurok.
Now let us consider the actual nature of the cooperation by which property
rights were defined and enforced-that is, the secondary rules that characterized
the legal enterprise. First,
we may dismiss the village and tribe with a word. Though persons were iden-
tified by their village of residence and their tribe of origin, neither of these
groups bad any direct claim upon the action of the individual, there was no
village nor national government, no village or tribal action in wars. Signifi-
cantly, the aftiliation could effectively be brnken by moving to a distance
or to one of the other tribes within the orbit of the c ~ l t u r e . ~
These Indian tribes nevertheless had a well-developed system of private judging."
For instance, if a Yurok wanted to process a legal claim he would hire two, three,
or four "crossers"-nonrelatives from a community other than his own. The
defendant in the claim would also hire crossers, and the entire group hired by
both parties would act as go-betweens, ascertaining claims and defenses and gather-
ing evidence. The crossers would render a judgment for damages after hearing
all the evidence.
The formal dispute resolution system involved clear rules of adjudication. And
as Hart himself noted, "a system which has rules of adjudication is necessarily
also committed to a rule of recognition of an elementary and imperfect sort. This
is so because, if courts are empowered to make authoritative determinations of
the fact that a rule has been broken, these cannot avoid being taken as authoritative
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 9
determinations of what the rules are."'Z A large number of offenses were recog-
nized by these Northern California tribes, ranging from murder, adultery, theft,
and poaching to curses and minor insult^.'^ Since there was no formalized social
unit, all offenses were against the person (torts). This is an inevitable result of
the procedures developed in this society, of course, since for disputes to arise
and require the attention of crossers, some action by one individual had to affect
another person negatively for it to be an issue of law. Actions that were clearly
not of this k i d , such as what a person did alone or in voluntary collaboration
with other persons but in a manner that clearly did not affect or harm others,
could never become subject to rules of conduct that would concern a crosser.
Yurok law contained a clearly indicated fine or indemnity to be paid to the
plaintiff by the offender if the crossers' judgment was that the defendant was guilty.
Liability, intent, the value of the damages and the status of the offended person
were all considered in determining the indemnity. Every invasion of person or
property could be valued in terms of property, however, and each required exact
compensation. Again, law clearly was in the nature of modem tort law rather
than criminal law. But how was the judgment enforced? After all, "Government
was strictly laissez faire [in fact, nonexistent given the definition proposed here],
with order prevailing through the consistent effort of each person to serve his
own self intere~t."'~
The crossers' judgment was enforceable because there was an effective threat
of total ostracism by the entire community of tribes-an extreme form of a boycon
sanction that will be discussed over and over below. In this Northern California
society, if someone failed to pay the fine he automatically became the plaintiff's
wage slave. If he refused to submit to this punishment, he became an outcast
or "outlaw," which meant that anyone could kill h i without any liability for
the killing. Fear of this severe boycon sanction meant that the crossers' judg-
ment tended to be accepted, of course. The threat of violence does not, in itself,
imply that violence was the norm. Indeed, this and other primitive legal systems
had as their basic impetus the desire by individuals to avoid violence.
The next question is how the community cooperated in order to make the threat
of ostracism viable. Each man in these tribes was a member of a "sweathouse
group"-a group of the men from three or more neighboring houses who shared
a ~udatory.~' He was free to join any group as long as others in the group agreed.
The groups were more than just social organizations, however. They carried out
religious rituals, and they acted in mutual support in the case of a dispute. Each
member had strong incentives to provide support because at some point in the
future he might find himself in a dispute and require the current disputant to
reciprocate. Thus, if an offender refused the judgment of the crossers and became
an outlaw, the offended individual's sweathouse group would back his effort for
physical retribution. The rest of the community would not interfere.
10 THE JOURNAL OF LIBERTARIAN STUDIES Winter
Yurok laws and their sanctions were clearly defined, and a system of authority
was established whereby those laws could be enforced. The authority was estab-
lished through reciprocal arrangements. As Pospisil explained, authority can be
"
coercive or per mi ssi ~e. "~~ That is, individuals can be forced to accept authority
or they can be persuaded. It was clearly in the best interests of individual members
of the Yurok and related tribes to voluntarily join in reciprocal arrangements and,
in doing so, to submit to the adjudication process established in that society in
the event of a dispute. This voluntarism largely avoided the inefficiencies inherent
in violent forms of dispute resolution.
Fuller suggested three conditions that make a legal (or moral) duty clear and
acceptable to those affected:
First,the relationship of reciprocity out of which the duty arises must result
from a voluntary agreement between the parties immediately affected; they
themselves "create" the duty. Second, the reciprocal performances of the
parties must in some sense be equal in value. Though the notion of voluntary
assumption itself makes a strong appeal to the sense of justice, that appeal
is reinforced when the element of equivalence is added to it. We cannot here
speak of an exact identity, for it makes no sense at all to exchange, say, a
book or idea in return for exactly the same book or idea. The bond of reci-
procity unites men, not simply in spite of their differences but because of
their differences. When, therefore, we seekquality in a relation of reciprocity
what we require is some measure of value that can be applied to things that
are different in kind. Third, the relationships within the society must be
sufficiently fluid so that the same duty you owe me today, I may owe you
tomorrow-in other words, the relationship of duty must in theory and in
practice be reversible. . . .
These, then are the three conditions for an optimum realization of the notion
of duty; the conditions that make a duty most understandable and most
palatable to the man who owes it."
Clearly these three conditions were met in the Yurok sweathouse groups. The
arrangements were voluntarily entered into. An individual exchanged a commit-
ment to support others in the case of a legal dispute for the equivalent commitment
from those other individuals for the same support should he find himself in such
a dispute. And finally, the arrangement was symmetrical in the sense that each
individual had strong incentives to support anyone in his group in the event of
a dispute because he realized that he might require the same kind of backing in
the future when his own property rights might be threatened. The fact that men
voluntarily entered into such reciprocal arrangements implies that the accom-
panying duties were clearly spelled out and generally hlfdled when a dispute arose.
The enterprise of law is a necessary prerequisite for social interaction. The
development of society must be accompanied by the simultaneous evolution of
a legal system. Lon Fuller proposed that "customary law" such as that practiced
among Yumk might best be described as a "language of interaction. He pointed
out that
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 11
to interact meaningfully men require a social setting in which the moves of
the participating players will fall generally within some predictable pattern.
To engage in effective social behavior men need the support of intermeshing
anticipations that will let them know what their opposite members will do,
or that will at least enable them to gauge the general scope of the repertory
from which responses to their actions will be drawn. We sometimes speak
of customary law as offering an unwrinen code of conduct. The word code
is appropriate here because what is involved is not simply a negation, a
prohibition of certain disapproved actions, but of this negation, the meaning
it confers on foreseeable and approved actions, which then furnish a point
of orientation for ongoing interactive responses.'9
This function of facilitating interaction among the Indians of Northern California
was accomplished, in large part, by the authority of clear-although unwritten-
codes of conduct enforced through reciprocally agreed upon, well-established
arbitration arrangements, with established legal sanctions backed by the threat
of ostracism and, ultimately, physical retribution. In fact, it really is the "matching
of expectations which is all the law can aim to f a~i l i t at e. "~~ This enterprise to
facilitate interaction by matching expectations obviously tends to promote cer-
tainty and efficiency.
Naturally, it is difficult to judge the actual degree of the certainty and effi-
ciency of this primitive legal system. However, there is some indirect evidence.
For one thing, these California Indians were ". . . a busy and creative people
. . . [and] poverty was not found here."" If incentives were in place to induce
"busy and creative" behavior, it is likely that individuals and their private property
rights were quite well protected. However, the widespread recognition of private
property rights implies a more significant level of certainty than that. "It is only
through thus defining the protected sphere of each that law determines those
'actions towards others' which it regulates, and that its general prohibition of
actions 'harming others' is given determinable meaning. This maximal certainty
of expectations which can be achieved in a society in which individuals are allowed
to use their knowledge . . . is secured by rules which tell everyone which . . .
circumstances must not be altered by others and which he himself must not alter."52
Laws and procedures for enforcement among the Yurok and their neighboring
tribes have been well documented. Together they imply well-established rules
of recognition and adjudication, but what about rules of change? Actual examples
of changes in Yurok law are not documented. This is, unfortunately, a limitation
of much of the anthropology literature, although not all, as noted below. Pospisil
explained that "since many societies have been studied for a relatively brief period
(one or two consecutive years), and since many investigators have been heavily
influenced by the early sociological dogma that divorces the individual from the
'social process,' it follows that there are very few accounts of volitional innova-
tions [m primitive law]."53 However, rules of adjudication imply rules of change
because adjudication of a dispute often leads to articulation of a new law, or at
I2 THE JOURNAL OF LIBERTARIAN STUDIES Winter
least clarification of existing unwritten law in the context of an unanticipated
circumstance. As Fuller explained:
Even in the absence of any formalized doctrine of stare decisis or res iudicata.
an adjudicative detemhation will normally enter in some degree intoiitigants;
future relations and into the future relations of other wlries who see themselves
as possible litigants before the same tribunal. EV& if there is no statement
by the tribunal of the reasons for its decision, some reason will be perceived
or guessed at, and the parties will tend to govern their conduct a~wrdingly.'~
Crossers, in the process of settling disputes, were on occasion likely to make
new rules, just as today's judges set precedents that become part of the law.
There is, in fact, a more fundamental reason to expect that the laws of the Yurok
could and did change. After all, those laws were not imposed on this society by
a sovereign. They developed or evolved internally. Clearly the Indians of Noxthern
California were a very homogeneous group by the time their laws and legal
procedures had advanced to the level described above, but this homogeneity had
to develop in conjunction with an evolving process of interaction and reciprocity
facilitated by customaty law. The Yurok had a weU-established legal system defin-
ing and protecting private property rights. Carl Menger proposed that the origin,
formation, and the ultimate process of all social institutions-including law-is
essentially the same as the spontaneous order Adam Smith described for markets.s5
Social institutions coordinate interactions. Markets do this and so does law, as
Fuller stressed. Institutions develop the way they do because, perhaps through
a process of trial and error, it is found that the actions they are intended to coor-
dinate are performed more effectively under one system or process than under
another. The more effective institutional arrangement replaces the less effective.
In the case of customary law, traditions and habits evolve to produce the
observed "spontaneous order," to use Hayek's term. As Hayek explained,
however, while Smith's and Menger's insights regarding the evolution of social
order "appear . . . to have firmly established themselves [in several of the social
sciences] another branch of knowledge of much greater. . . influence,
jurisprudence, is still almost wholly unaffected by i t MJ 6 In particular, the legal
positivist view holds that law is the product of deliberate design rather than the
evolutionary, undesigned outcome of a process of growth. In fact, however, as
this discussion of primitive law demonstrates, the secondary rules that Hart pro-
posed must be "imposed" in order to create a legal system "evolved" without
the design of any absolute authority.
In the case of the Yurok, the earliest sweathouse groups probably proved to
be an effective social arrangement for internalizing reciprocal legal and religious
benefits, relative to previously existing arrangements. Others saw those benefits
and either joined existing groups or copied their successful characteristics and
formed new groups. In the process, the arrangements may have been improved
upon and become more formal (contractual) and effective. It is perfectly con-
13 1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES
ceivable that neither members of the earliest groups nor those that followed even
understood what particular aspect of the contract actually facilitated the inter-
actions that led to an improved social order-they may have viewed the religious
function of the group to be its main purpose and paid little attention to the conse-
quences of their legal functions, for instance. Customary law and society develop
coterminously. Those customs and legal institutions that survive are relatively
efficient because the evolutionary process is one of "natural selection," where
laws or procedures that serve social interaction relatively poorly are ultimately
replaced by improved laws and procedures.
The discussion of the Yurok legal system has sewed two purposes. First, it
provided strong indications that the evolutionary enterprise of law produces
secondary rules of recognition, adjudication, and change despite the fact that no
government or absolute authority figure existed to mandate such rules. Second,
it introduced several general characteristics of virtually al l primitive legal systems.
They are: (1) primary rules characterized by a predominant concern for individual
rights and private property; (2) placement of the responsibility for law enforce-
ment in the hands of the victim with recognition of his rights arising through
reciprocal arrangements for protection and support when a dispute arises; (3) stan-
dard adjudicative procedures established in order to avoid violent forms of dispute
resolution; (4) offenses treated as torts punishable by economic payments in restitu-
tion; (5) strong incentives to yield to prescribed punishment (recognize the law's
authority) when guilty of an offense because of the threat of social ostracism leading
to physical retribution; and (6) legal change arising through an evolutionary process
of developing customs and norms.
Let us now turn to some of the other primitive systems that anthropologists
have studied. We shall find that the specific legal procedures may be different
from those of the Yurok and their neighbors, but that each society has established
Hart's secondary rules to one degree or another and that the same six characteristics
listed here apply.
IV. The Legal System of the Ifugao of Northern Luzon
Privately produced law in primitive societies is not unique to the American
Indian.5' For example, "the great significance of the Ifugao for the study of the
nature and function of primitive legal and political institutions rests in the fact
that they reveal how far it is possible to elaborate a system of interfamilial law
on the foundation of quite elementary social structure. They reveal how wrong
are political theorists who hold that law and government are wholly i ndi ~i si bl e. "~~
The economy of the Ifugao in Northern Luzon during the early 1900s was
dominated by an intensive irrigation hoe culture. Such an economy inevitably
requires laws, if for no other reason than to resolve issues over water rights and
maintain a complex real-estate system. And the Ifugao developed a very elaborate
14 THE JOURNAL OF LIBERTARIAN STUDIES Winter
system of substantive law. Yet the Ifugao had no tribal, district, or village govern-
mental organizations, and no centralized authority with the power to force com-
pliance with the laws or to levy compulsive sanctions on behalf of the society
at large. The family had a leader, but not in the sense of a political organization:
"Although he leads the family in legal and economic enterprise, its members
think of him more as an integrating core than as a head who in any way
dominates."'9
The family, which for any individual included ascendants and descendants of
both his father and his mother to the third degree, was the individual's source
of support in legal matters. "The mutual duty of kinfolk and relatives, each
individual to every other of the same family, regardless of sex, is to aid, advise,
assist, and support in al l controversies and altercations with members of other
groups or families."a The family members were obligated to aid another member
in direct proportion to the closeness of their kinship or relationship through
marriage and to the extent to which that member had fulfilled his obligations to
the family in the past. The ability to obtain support in a dispute thus depended
on reciprocal loyalty, much as with the Yurok, but in this case the support group
was clearly defined by kinship.
Individual disputes were not settled by warfare between families, however. As
with the Yurok, well-established adjudication procedures were designed to resolve
disputes without violent confrontations. The factor behind dispute resolution-
the impetus for reaching an agreement-was the ever present threat of force, but
use of force was certainly not the norm. The key figure in any difficult dispute
among the Ifugao was the monknlun. He was a go-between or medi at ~r . ~' The
monkalun had no vested authority to impose a solution on disputants, however.
He was like the private mediators of today, receiving a fee if he could somehow
lead the two parties to a peaceful settlement. The monkalun was not likely to be
a close relative to either of the parties in dispute since his only real power was
that of persuasion, and a close relative of one party would have considerable dif-
ficulty in persuading the other. His "authority" in disputes was voluntarily granted
by those involved because they were convinced that be would perform his func-
tion well-that is, achieve a nonviolent resolution of the dispute.
Ostracism provided important incentives for law enforcement, as with the
Yurok. Among the Ifugao, however, an individual was expected to collect all
debts owed him or punish injuries to him that were not compensated for: "Did
he not do so he would become the prey of his fellows. No one would respect
him . . . [he would] hear himself accused of cowardice and called a woman."62
Ifugao law, like all privately produced law, was in the nature of torts-private
wrongs or injuries-since "criminal law" implies some wrong against society.
Thus it was up to the aggrieved party to pursue prosecution. However, Ifugao
legal procedure required the use of a monkalun. After all, if the accuser took
matters into his own hands and killed the accused, the family of the accused was
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 15
obliged to avenge the death by killing the initial accuser. The two families (as
well as nonfamily residents of the village or villages involved) were eager for
a peaceful settlement, then, in order to avoid an extended violent confrontation.
In fact, a great number of cultural taboos (customary laws of adjudication) kept
the two parties in a dispute apart as long as the monkalun was working toward
a settlement. The monkalun truly was a go-between in the sense that he heard
all testimony and confronted each party with the other party's evidence. As long
as a peaceful settlement was remotely possible, this mediator strove for that solu-
tion. His fee (paid by the defendant) depended on it, and more importantly
". . . the peaceful settlement of cases in which he is mediator builds up a reputa-
tion for him, so that he is frequently called and so can earn many fees."63 Media-
tion was a competitive industry.
The damages paid by an Ifugao defendant as restitution were fairly clearly spelled
out, as they were with the Yurok Indians and their neighbors. When both parties
in the dispute were of the same social class or status, the compensation was easily
determined.6* Although settlements in disputes between people of different social
status were a bit more complex, there still were fairly clear standards for
judgments. The violation of contracts or commission of torts was virtually always
sanctioned by property assessments.
But what happened if the defendant refused to admit his guilt and would not
come to terms through the monkalun? Did interfamily warfare break out? The
answer to the second question is no because the answer to the fust is that such
a refusal would be viewed as an insult to themonkalun and align his family against
whichever party initiated the violence. This prospect deterred any immediate action
by either party even when an impasse was reached. If a monkalun saw no prospect
for a settlement, he would formally withdraw and declare a truce, which had to
last for between two weeks and a month. If the truce was violated, the monkalun
and his family would align themselves against the aggressor.
At the end of the truce the plaintiff had two options. He could find a new
monkalun and hope for a peaceful settlement, or be and his family could begin
preparing to ambush the defendant. Typically, if the plaintiffs claim was just,
a successful ambush would not result in retaliation by the slain defendant's family.
It was generally only when the claim was not justified that retaliation occurred
and ". . . it was here that Ifugao law breaks down" as feuds resulted.65 However,
the entire justice system was designed to avoid this end, and indeed,
Within the "home district" (i.e., a given valley system) resort to killing is
rare, however. Neighbors not involved in the dispute exert pressure on the
litigants to come to terms. The monknlun extends his efforts to the uhnost.
And the litigants also feel an obligation not to endanger home security. When
[a feud] does occur . . . [it] will be brought to a close before too
One might argue that the potential for this breakdown in the private system
of law and order developed by the Ifugao implies that the system was incomplete
16 THE JOURNAL OF LIBERTARIAN STUDIES Winter
or ineffective, even though such breakdowns were rare. Of course, every legal
system can break down in the same way because individuals can always take the
law into their own hands and face the consequences. In fact, the lfugao system
appears to have been quite effective. Given the almost continual warfare that
existed between various districts, the private system of law and order seems to
have kept violence within each district to a very low Once again we find
a clear legal enterprise that produced a recognition of the authority of widely
known although unwritten law protecting property rights and an apparently effi-
cient dispute resolution mechanism.
V. Evolutionary Law: The Kapauku
Papuans of West New Guinea
Many legal scholars have contended that primitive legal systems were quite static
and resistant to change.68 This opinion is frequently traced to Sir Henry Mai ~e. ~V
Maine wrote that "the rigidity of primitive law . . . has chained down the mass
of the human race to those views of life and conduct which they entertained at
the time when their usages were first consolidated into a systematic
E. A. Hoebel, however, has remarked that "If ever Sir Henry Maine f i e d an
erroneous notion on modern legal historians, it was the idea that primitive law,
once formulated, is stiff and ritual is ti^."^' Similarly, Pospisil explained that several
examples of change in primitive law have been doc ~me nt e d. ~~
The examples of primitive legal systems discussed earlier indicate that many
of these systems have a great deal in common. Indeed, additional detailed examples
would begin to sound both repetitive and redundant. However, the preceding
examples lack strong documentation of Hart's rules of change, which he con-
sidered to he necessary for existence of a uue legal system, and for this reason
one more primitive system will he discussed. Pospisil's work with and discoveries
about the legal system of the Kapauku Papuans of West New Guinea is chosen
because of his explicit discussion of the process of legal change in this society.
Before examining this particular aspect of Kapauku law, however, the society
and its legal system will be briefly discussed.
The Kapauku Papuans were a primitive linguistic group of about 45,000 living
by means of horticulture in the western part of the central highlands of West New
Guinea until well past the middle of this century. Their reciprocal arrangements
for support and protection were based on kinship, as with the Ifugao. However,
members of two or more patrilineages typically joined together for defensive and
legal purposes, even though they often belonged to different sibs. These "con-
federations" often encompassed from three to nine villages, with each village
consisting of about fifteen households.
The Kapauku had no formal government with coercive power. Most observers
have concluded that there was a virtual lack of leadership among these people.
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 17
One Dutch admimistrator noted, however, that "there is a man who seems to have
some influence upon the others. He is referred to by the name tonowi which means
'the rich one.' Nevertheless, I would hesitate to call him a chief or a leader at
all; primus interpares [the first among equals] would be a more proper designa-
tion for him."13 In order to understand the role and prestige of the tonowi, one
must recognize two basic values of the Kapauku: an emphasis on individualism
and on physical freed0m.l' The emphasis on individualism manifested itself in
several ways. For instance, a detailed system of private property rights was evi-
dent. In fact, there was absolutely no common ownership. "A house, boat, bow
and arrows, field, crops, patches of second-growth forest, or even a meal shared
by a family or household is always owned by one person. Individual owner-
ship . . . is so extensive in the Kamu Valley that we fmd the virgin forests divided
into tracts which belong to single individuals. Relatives, husbands and wives do
not own anything in common. Even an eleven-year-old boy can own his field
and his money and play the role of debtor and creditor as
The paramounts role of individual rights also was evident in the position of
the tonowi as a person who had earned the admiration and respect of others in
the society. He was typically "a healthy man in the prime of life" who had
accumulated a good deal of wealth.16 The wealth accumulated by an individual
in Kapauku society almost always depended on that individual's work effort and
skill, so anyone who had acquired sufficient property to reach the status of tonowi
was generally a mature, skilled individual with considerable physical ability and
intellectual experience. However, not all tonowi achieved respect that would induce
others to rely upon them for leadership. "The way in which capital is acquired
and how it is used make a great difference; the natives favor rich candidates who
are generous and honest. These two attributes are greatly valued by the ~ul t ure. "' ~
Generosity was a major criteria for acceptance of a particular tonowi in a leader-
ship role because, in large part, followers were obtained through contract.
Each individual in the society could choose to align himself with any available
tonowi and then contract with that chosen tonowi. Typically, followers would
become debtors to a maagodo tonowi (a "really rich man") who was considered
to be generous and honest. In exchange for the loan, the individual agreed to
perform certain duties in support of the tonowi. The followers got much more
than a loan, however:
It is gwd for a Kapauku to have a close relative as headman because he can
then depend upon his help in economic, political, and legal matters. The
expeaation of futurefavorsand advantages is pmbably the most potent motiva-
tion for most of the headman's followers. Strangers who know about the
generosity of a headman try to please him, and people from his own political
unit attend to his desires. Even individuals from neighboring confederations
may yield to the wishes of a tonowi in case his help may be needed."
18 THE JOURNAL OF LIBERTARIAN STUDIES Winter
Tonowi authority was given, not taken. This leadership reflected, to a great extent,
an ability to "persuade the unit to support a man in a dispute or to fight for his
cause."79 Thus the tonowi position of authority was not, in any way, a position
of absolute sovereignty. It was achieved through reciprocal exchange of support
between a tonowi and his followers, support that could be freely withdrawn by
either party (e.g., upon payment of debt or demand for repayment).80
What happened if a tonowi proved to be ineffective or dishonest in his legal
role? First of all, honesty and generosity were prerequisites for a tonowi to gather
a following. However, if someone managed to do so and then proved to be a
bad leader, he simply lost his following. "Passive resistance and refusal of the
followers to support him is . . . the result of a decision [considered unjust]."s'
Clearly, change in the legal authority was possible; indeed, one purpose of the
Kapauku procedure that involved articulation of relevant laws by the tonowi was
to achieve public acceptance of his ruling. As Fuller noted, one course of "the
affinity between legality and justice consisted simply in the fact that a rule
articulated and made known permits the public to judge its fairne~s. "~'
The informality and contractual characteristics of Kapauku leadership led many
western observers to conclude that Kapauku society lacked law, but clear evidence
of rules of recognition, adjudication, and change can be demonstrated within the
Kapauku's legal system.
Rules of Recognition
A "mental codification of abstract rules" existed for the Kapauku Papuans,
so that legal decisions were part of a "going order."83 Recognition of law was
based on kinship and contractual reciprocities motivated by individual rights and
private property. Grammatical phrases and references to specific customs,
precedents, or rules were present in all adjudication decisions Pospisil observed
during his several years of studying the Kapauku. He concluded that "not only
does a legal decision solve a specific case, but it also formulates an ideal-a solu-
tion intended to be utilized in a similar situation in the future. The ideal compo-
nent binds all other members of the group who did not participate in the case
under consideration. The authority himself turns to his previous decisions for
con~i st ency. "~~ The authority of the law is obvious, as is the drive for certainty.
Legal decisions had the status of modem legal precedents, and therefore it should
be obvious that rules of adjudication and change existed since the setting of and
reference to precedent is a form of "legislation."
Rules of Adjudication
The Kapauku process of law appears to have been highly standardized, almost
to the point of ritual. It typically started with a loud quarrel, during which the
plaintiff accused the defendant of committing some harmful act while the defen-
19 1989 BRUCE L. BENSON-PROPERTY RMjHTS IN PRIMITIVE SOCIETIES
dant responded with denials or justification. The quarrel involved loud shouting
for the purpose of attracting other people, including one or more ronowi. The
close relatives and friends of those involved in the dispute would take sides,
presenting opinions and testimony in loud, emotional speeches. The ronowi
generally simply listened until the exchange of opinion approached the point of
violence, whereupon he stepped in and began his argument. If he waited too long,
an outbreak of "stick fighting" or even war could occur, but this was rare.
(Posoisil observed 176 disoute resolutions involvine "difficult cases":
.
onlv
.
5
. . -
led to stick fights and 1 resulted in war.05) The tonowi began his presentation
by "admonishing" the disputants to have patience and then proceeded toques-
tion various witnesses. ~ e wo u l d search the scene of the offense and the defen-
dant's house or both for evidence if doing so was appropriate. "Having secured
the evidence and made up his mind about the factual background of the dispute,
the authority starts the activity called by natives boko duwai, the process of mak-
ing a decision and inducing the parties to the dispute to follow it."s6 The tonowi
would make a long speech, summing up the evidence, appealing to the relevant
rules and precedents, and suggesting what should be done to end the dispute.
When judged to be guilty a Kapauku was punished. The specific sanction for
a case was suggested by the tonowi if the dispute required his intervention, and
if the dispute was settled it meant the guilty offender agreed to accepr that sanc-
tion. Sanctions in this society varied considerably, depending on the offense. They
included economic restitution and various forms of physical punishment. Despite
the use of a wide array of sanctions, however, the Kapaukus' paramount concern
for individual freedom precluded certain types of punishments widely used in
western societies. There was no such thing as imprisonment, for instance, and
neither t omre nor physical maiming was permitted. (Both have been common
in western societies, of course.87) Moreover, capital punishment was not the
nonnal sanction even for violent crimes. As with the Yurok and Ifugao, however,
"economic sanctions are by far the most preferred ones among the Ka p a ~ k u . " ~ ~
The Kapauku did resort to physical punishment at times, nonetheless. In fact,
defendants often had a choice between an economic sanction or a physical sanc-
tion, frequently choosing the latter. Sometimes an offense was considered too
severe to warrant economic payment. "A heinous criminal or a captured enemy
would be killed but never tortured or deprived of liberty."09 In keeping with the
emphasis on individual freedom, however, the killing generally took place through
an ambush with bow and arrow?" "A culprit . . . would always have the chance
to run or fieht back."9'
-
A third type of sanction was also applied by the Kapauku-psychologica1 sanc-
tions. "The most dreaded and feared of the psychological and social sanctions
of the Kapauku is the public reprimand. . . . The Kapauku regard this psycho-
logical punishment as the most effective of their entire inventory of sanction^."^^
Furthermore, punishment by sorcery or through the shaman's helping spirits was
20 THE JOURNAL OF LIBERTARIAN STUDIES Winter
also employed when the offender was strong enough to resist a tonowi's deci-
sions. "Disease and death are the ultimate (psychosomatic) effect of this 'super-
natural' p~ni shment . "~~
This suggests one solution to the problem that might arise when a defendant
refused to submit to the sanction proposed by a tonowi, an infrequent but possible
outcome of the Kapauku legal process. As Fuller explained, one form of punish-
ment in primitive societies has often been "an exercise of magical powers on
the offender to purge the community of an uncleanliness. A similar purging was
accomplished through the generous use of ostraci~m."~' In fact then, the use of
magic was simply one form of ostracism, and another, the one mentioned in earlier
discussion, was also a solution when a judgment was not accepted. Ostracism
by all members of a confederation was the ultimate threat.95
Rules of Change
Pospisil documented two ways that legislation could occur. First, very simply,
law could change as custom changed. One example of such an occurrence had
to do with the Kapauku adultery laws. It was customary until a few years prior
to 1954 that an adulterous woman would be executed by her husband. However,
men, and particularly relatively poor men, came to realize that such a sanction
was too costly because of the high price paid for a wife. As a result, the punish-
ment was changed to beating or perhaps wounding the adultress. The change was
made initially by relatively poor men and was resisted by rich Kapauku Papuans.
However, the new customary sanction was upheld by tonowi in four adultery cases
observed by Pospisil during the 1954-55 period: "Thus what started as a more
economical practice among the poorer husband became customary law by being
incorporated into legal decision^."^^ In a similar fashion, of course, a law that
at one time is applied can loose its popular support and effectively be abolished.97
A second procedure for legal change was also observed among the Kapauku.
A change in one lineage's law of incest resulted from "successful legislation"
by a sublineage tonowi: "He succeeded in changing an old rule of sib exogamy
into a new law that permitted inuasib marriages as close as between second
cousins."98 This legislation was not authoritarian in the sense that its passage
forced compliance by others, of course. Rather its acceptance spread through
voluntary recognition. First it was adopted by the tonowi, then by more and more
young men in his sublineage, and ultimately by ronowi of other sublineages within
the same lineage. The head of the confederacy, a member of that lineage, also
ultimately accepted the new law, but other lineages in the same confederacy did
not, and thus incest laws varied across lineages within the same c~nfederacy.~'
The characteristic that distinguishes this legal change from the previous one is
that it was an intentional legal innovation initiated by a tonowi. Its adoption was
still voluntary, however. Popisil concluded that in primitive systems "legal
phenomena are constantly changing as does the rest of the culture."100
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMmVE SOCIETIES 21
VI. Law in Primitive Societies:
Conclusions and Implications
Many economists and legal scholars believe that physical sanctions administered
by a politically organized society are the basic criteria of law, and thus many
primitive societies have been held to be "lawless." The examples of law among
the Yurok, Ifugao, and Kapauku clearly contradict this view, and they are, in
fact, only examples. Many other primitive societies could be similarly character-
ized. As Hoebel explained, in virtually all primitive societies
the communitv erouo. althoueh it mav be ethnoloeicallv a seement of a tribe
- .
is autonomous &d &iticall;indepekdent. There is no tribg state. Leader-
shio resides in familv or Local erouo headmen who have little coercive authoritv
ani are hence lack& in b o i th; means to exploit and the means to judge..
They are not explicitly elected to offtce; rather, they lead by the tacit con-
sent of their followers, and they lose their leadership when their people begin
no longer to accept their suggestions. . . . As it is, their leadership is con-
fmed to action in routine matters. The ptriarchal tyrant of the primitive horde
is nothing but a figment of nineteenthzentury speculation. The simplest
primitive societies are democratic to the point of near-anarchy. But primitive
anarchv does not mean disorder. Anmhv as svnonvmous with disorder occurs
only t~mporarily in complex societies wlkn in; w'd cataclysm the regulating
restraints of government and law are suddenly and disastrously removed.'"'
Customary systems of law maintained internal order in primitive societies even
when violence and warfare characterized relationships with other groups or
societies. This customary law often was quite complex, systematically covering
all types of torts and breaches of contract relevant to the society. (There were
no "criminal laws" since all offenses were against individuals rather than the
"society" as represented by a government.) The rules and institutions established
to carry out the law appeared to be effectively designed to alleviate uncertainty,
enhance efficient interactions between members of the societies, and encourage
legal change as a reflection of changing needs. In particular, these primitive
arrangements clearly were intended to minimize the chance of violent confronta-
tions within the societies while maintaining systems of private property and
individual rights.
One might argue that the privately provided law of primitive society has no
relevance today, since the simply arrangements described above could never be
effective in a more complex society. Even if this argument is true, however, there
are some very significant reasons to study primitive systems of privately produced
law and order. For example, as Lon Fuller explained, "if we look closely among
the varying social contexts presented by our own society we shall find analogues
of almost every phenomenon thought to characterize primitive law."'02 An
understanding of these relatively simple systems may lead us to a clearer under-
standing of our own.
22 THE JOURNAL OF LIBERTARIAN STUDIES Winter
Furthermore, a study of the incentives and institutions of primitive law and
the resulting primary and secondary rules makes it evident that precisely the same
kinds of govenunentless legal systems have existed in considerably more advanced,
complex societies, ranging from Medieval Iceland,Lo3 Ireland,'" and AnglrrSaxon
England,'05 to the development of the Medieval Law Merchant and its evolution
into modern international commercial law,lo6 and even to the western frontier
of the United States during the 1800~. ' ~' The fact is that much of the law that
guides today's complex American society actually evolved from or is simply a
reflection of precisely the same customary law sources as those underlying the
legal systems discussed above. In particular, private property rights appear to
be a product of customary, not government produced, law. Market prices and
institutions arise spontaneously in order to facilitate interaction. Economists should
not be surprised to find that private property and legal institutions can exist without
government, since their purpose is similarly to facilitate interaction.
NOTES
I. Robert Redfield, "Primitive Law," in Paul Bohanan, ed., Low and Warfare (Garden City,
N.Y.: The Natoral History Press, 1967).
2. Wolfgang G. Friedmann, Low and Social Change in Contemporov Britain (London: Stevens,
1951). p. 281. Emphasis added.
3. Bernard P. Herba, Modem Public Finonce: lhe St& of Public Senor Em~m'cs(Homewmd,
Ill. : Richard D. Invin, 1975).
4. F. A. Hayek, Low, Legislotion and Libeny, vol. 1, Rules and Order (Chicago: University of
Chicago Press, 19731, p. 73.
5. For example, John Baden, Richard Suaup, and Walter Thuman, "Myths, Admonitions and
Rationality: The American Indian as a Resource Manager," Ecomm'cInquiry 19 (January 1981):
399427; and D. Bruce Jahnsen, "The Formation and Protection of Property Rights Among
the Southern Kwakiutl Indians," Jouml of Legal Studies 17 (January 1986): 41-67.
6. Actually, the production of law and allocation of its enforcement can easily be characterized
as a market process. See Bruce L. Benson, libeny and Justice: Alremarives in rhe Pmvision
o f b w and Order (San Francisco, Calif.: Pacific Institote) Forthcoming.; and Bruce L. Benson
and Eric Engen, "The Market for Laws:An Economic Analysis of Legislation," Southern
Economic Journal 54 (January 1988): 732-745.
7. Baden, Stroup and Thuman, "Myths, Admonitions and Rationality."
8. Hamld Demsetz, "Toward a Theory of Property Rights," Americnn Economic Review 57 (May
1967): 347-359.
9. Johnsen, "The Formation and Protection of Property Rights."
10. David Friedman, "Private Creation and Enforcement of Law: A Historical Case," Journal
of Legal Studies 8 (March 1979): 399415.
1 I. Richard A. Posner, "A Theory of Primitive Society, with Speeial Reference to Primitive Law,"
Journal of Low and Emnom'cs23 (April 1980): 1-53; and Pasner, lhe Economics of Justice
(Cambridge, Mass.: Harvard University Press, 1981).
12. Bronislaw Malinowski, Crime and Custom in Snvoge Society (London: Routledge and Kegan
Paul, 1926).
13. Lon L. Fuller, 7 h Momiity of Low (New Haven: Yale University Press, 1964), p. 130.
14
...
b i d n 151
r.
15. Redfield, "Primitive Law," p. 3.
16. H. L. A. Han, lhe Concept of Low (Oxford: Clarendon Press, 1961), pp. 89-96
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 23
17. Ibid., p. 89.
18. Ibid., p. 90.
19. Ibid.
20. Ibid.
21. Ibid., p. 91.
22. Ibid. -- - ~ ~ -
23. bid.. p. 92.
24. bid. , p. 94.
25. Kenneth I. Winston, "Editon Note," in Lon L. Fuller, ed., 7he Principles of Social Order
(Durham. N.C.: Duke University Press. 1981).
26. In fan. Han's distinction between orimatv and secondan rules is closelv associated with. if
not svnonamous with. the distinctioi between "orivate law" and "oublieiaw" made bv &nv
, ,
legal xhul an Pnvatc law I\ ohen used to des~gnate ~ l e s of condua wh k pubhc law refer,
Uthe rules r mng up h e appmtus of govemment l o e n f o ~ ItmeN k s d cmJuit See Hayck.
ond Dbtn). pp 133. 176-178 This d~st ~nct un bn.l ~x~r hr mn IS not made here h a u s e the
term "public law" implies exi s&e of a state and i u government, but as noted above, semndaty
rules can and do evolve without a state.
27. Fuller, Morality of low,pp. 133-155.
28. Hayek, Law,vol. I, pp. 96-97.
29. Fuller, Morality of low,p. 138.
30. Han implied that law typically must be written to be recognized, but, according to Fuller, "m
Ule extent IhaI the law merely btings to explicit expression conceptions of right and wmng widely
shared in the community, the need that [it] . . . be publicized and clearly sfated diminishes in
importvlce." bid. , p. 92.
31. Han. Conce~tofbw,D. 89.
32 John ~mbcck, if~ r o ~ t n ) . ~ ~ g h r c ~.7lw~hror). With Ap p l k r ~ mlo lhr Gl$omia (mldRurh (Arne\.
Iowa: Iowa Stare Un~venlty Ptcrs. 1981,. and John Umbak. "Might Makes Rights: A Theory
of the Foundation and lnmal D~nbut r un ofPmpeny Right,," Econnmtc Inqudr) I9 (January
1981): 38-59.
33. Friedman, "Private Creation and Enforcement of Law."
34. J omh R. Peden."Prooenv Riehu in Celtic lrish Laws." Jowwl ofIibem"m Studies 1 ( 1977~
35. In effect. eovemment is held exist when the s v s t e ~o f authorit; has characteristics &mmoDn ~ ~ ~~ ~
,
to l hor n&om ruled by lungs m Eurupeduring mediebal period (and several arlrcr penuds.
of cuune), or charactcristtrs that hmc since cvolved as krngs centralued and expanded thew
powen and gmups of citizens reacted in an attempt to limit the kings' efforts. See Benson,
Libeny and Justice, for details.
36. Ibid.
37. Bruce L. Benson, "The Spontaneous EvolutionofCanmetcizl Law," Snuhern EmnomicJarmnl
55 (Janvatv 1989): 644-661.
38 wa h r ~oi d, mdt ; ' .Ethr, and the Structure of Soclety: An Ethnulugval Contrihutun u the
Swlulogy of Knauledgc." Ameriwn Amhropulugir~53 (October-December 1951 j 506-52A
39 Hilyrk (lo-.vul. I . p. 108) explamed that s an
erroneous idea that pmpetly had at some late stage been 'invented' and that before
that there had existed an early state of primitive communism. This myth has been
completely refuted by anthmpological research. There can be no question now
that the recognition of pmpetly preceded the rise of even the most primitive
cultures, and that certainly all that we call civilization has grown up an the basis
of that spontaneous order of actions which is made possible by the delimitation
of protected domains of individuals and gmups. Although the socialist thinking
of our time has succeeded in bringing this insight under suspicion of being
ideologically inspired, it is as well demonstrated a scientific truth as any we have
attained in this field.
40. Goldsmidt. "Ethics." o. 506
41. William M. ~andes' anb Richard A. Posner, "Adjudication as a Private Good," Joumol of
Legal Studies 8 (March 1979), p. 243.
24 THE JOURNAL OF LIBERTARIAN STUDIES Winter
42. Hart, Concept of l aw, p. 89.
43. Goldsmidt, "Ethics," p. 512.
44. Redfield, "Primitive Law," p. 8.
45. Goldsmidt, "Ethics," p. 512.
46. Lmpold Pospisil, Anthropology of Law: A Cornpornrive Reory (New York: Harper and Row,
19711. o. 58.
47. ~ul l er , koral i zy oflow, pp. 23-24.
48. Fuller, Pn'nciples of Sociol Order, p. 213
49. bi d.
50. Hayek, Lmw, Legislation and Libeny, p. 11 1.
51. Goldsmidt, "Ethics," pp. 513-514.
52. Hayek, l ow, vol. 1, pp. 108-109.
53. Pospisil, Anthropology of l ow, p. 215.
54. Fuller, Momliry of l aw, p. 90. The arguments which follow are expanded upon in Bmce L.
Benson, "Legal Evolution in Primitive Societies," Journol of lnstimrional ond Theoretical
Economics 144 (December 1988): 772-788.
55. Carl Menger, Problems ofEconomicsand Sociology, trans. Francis I. Nook, Louis Scheider,
ed., (Urbana, nl.: 1963); and Adam Smith, An Inquiry inro the Nmr e and C u e s ofthe Wealth
of Naions (New York: Modem Library, 1937).
56. F. A. Hayek, Studies in Philosophy, Politics ondEconomics (Chicago: University of Chicago
Press, 19671, p. 101.
57. The laissez-faire society of Northern California is not the only instance of private law and order
among the American Indians. In fact, Hoebel explained that law existed far many Indian societies
without a political state. (E. Adamson Hoebel. 7hc l o w of Primitive Man (Cambridge, Mass.:
Harvard University press, 1954), p. 188.)
58. bid. , p. 100. Parts of the presentation in this section can be found in Bruce L. Benson, "The
Lost Victim and Other Failures of the Public Law Experiment," Haword J m m l of Law and
Public Policy 9 (Spring 1986): 399-427.
59. Hoebel. Lmw o f Primitive Man.
. .
D. 101.
60. R. F. B mn , "Pmcedure Among the ifugao," in Paul Bohanan, ed., Law ond Wadore (Garden
City, N.Y.: The Nahlral History Press, 1967), p. 161.
61. Ibid., p. 163.
62. bid. , pp. 164-165.
63. lbid., p. 166.
64. Hoebel, l a w of Primitive Man. p. 117.
65. bi d. , p. 121.
66. lbid.
67. Hoebel explained that as an Ifugao moved away from his home district he moved through a
"neutral zone" into a "feudal zone" where, "Permanent feuding relations with certain families
in the area are the thing" (Ibid., p. 122). There were also "war zones" where, "Anybody
in the area is killed on sight" (bid. , p. 124). It should be noted that such interdistrict warfare
was not "warfare" as conceived in modem society, where one political organization seeks to
taketerritory andlor resources fmm another; rather it was a social and religious instihltion with
successful headhunting generating social prestige and religious "benefits."
68. For example, see Posner, Economics of Justice, p. 178.
69. Sir Henry S. Maine, Annenr Law, 3rd American from 5th English edition (New York: Henry
Holt and Co., 1864).
70. bi d. , p. 74.
71. Hoebel, Law of Primitive Man, p. 283.
72. Pospisil, Anthropology of Law, pp. 194, 206, 208.
73. Quoted in lbid., p. 64.
74. bi d. , p. 65.
75. bid. , p. 66.
76. Ibid., p. 67.
77. bi d. Other criteria were important as well, including an ability and willingness to speak in public.
78. bi d. , pp. 68-69.
1989 BRUCE L. BENSON-PROPERTY RIGHTS IN PRIMITIVE SOCIETIES 25
79. bi d. , pp. 69-70.
80. One gmup of a ronmvi's followers was especially faithful and dependable, always available
when a need for support arose. They were called ani jokaani or "my boys," and consisted
of a gmup of young men who were "adopted" by thetonowi andbecame his "students" (Ibid.,
p. 69):
They ometo live with the rich man to l a m especially how he transactedbusiness,
to secure his protection, to share his food, and,fmally, to be granted a substan-
tidloan for buying a wife. In remrn they offer their labor in the fields and around
the house, theheir sippon in legal and other disputes, and their lives in case of
a war. The boys may be from different sibs and confederacies, or they may be
relatives. - - ~
. . . However, this wntradual association is quite lwse. Bath p l i e s are free
to terminate it at any time and the boy is never treated as an inferior by the rich
man
81. hid. , p. 94.
82. Fuller, Morolity @l ow, p. 159.
83. Pospisil, Anlhropology oflow, p. 80.
84. Ibid., p. 80.
85. bid. , p. 36.
86. Ibid.
87. See Benson, Liberty and Jusrice.
88. Pospisil. Anthropology of low, p. 93.
89. Ibid., p. 65.
90. Interestingly, in many of these cases "the punishment was carried out by a close patrilineal
relative of the culprit. . . . Employment of patrilineal relatives to pankipate in the killing was
a clever cultural device to prevent internal strain and feuds" (Ibid., p. 92).
91. Ibid., p. 65. Another farm of physical W i o n was teating the head and shoulders of the offender
with a stick. Again the individual was not consmined and could fight back, but in each instance
observed by Pospisil submitted without raising a defense. Individual defendants apparently chose
to submit to the beating rather than make a payment to the victim or his heirs.
92. Ibid., p. 93. Other psychological sanctions were also employed. A private warning given by
a tonowi for a minor violation of a taboo or for lying wuld cause the guilty pany to suffer
"a loss of face once it becomes known that he was punished in such a way ."
93. bi d. , p. 94.
94. Fuller, Morality oflow. pp. 143-144.
95. Rules of adjudication among the Kapauh were much more detailed than suggested in this brief
discussion. For instance, there were clearly specified, detailed jurisdictional delineations. See
Pospisil, Anrhropology o f b w, or Benson, Liberty and Jurrice.
96. Pospisil, Anrhropology oflow, p. 205.
97. Fuller explained the procedure of such changes in customary law, as follows, noting that change
like Ui s is quite common and can occur quite quickly (Principles ofSocin1 O&r, pp. 227-229):
Where bv his actions toward B. A has (whatever his actual intentions mav have
becn, gnen B red~ndbl ) tu understand that he (A) ulll in the future in slmllar
rllual#on, &t ln u mh r manner. and B has. hn Wmc ,ubstant~al way, prudently
adjurtcd h ~ s affnm lo the expeculwn that A w~ll a d in acrurdance x ~ t h t h~s
expectation, then A is bound to follow the pattern set by his past actions toward
B. This creates an obligation by A to B. If the pattern of interaction followed
by A and B then spreads thmugh the relevant community, a tule of general
customary law has been created. This rule wiU nonnally become pan of a larger
svstem. which will involve a wmalex network of recioracal exoectatians.
Abwrpl m of the new lnlo the larger syrtem wdl. of o u r r , be f.tcd&atd
b) the lac1 ha the incracllun, that gave rlse to xt tmk place uNhm l ~ mm set
b) the system and derwcd a pan of thctr mcamng for thc p mc r from the wder
interactional context within which it occurred
26 THE JOURNAL OF LIBERTARIAN STULllES Winter
Where customary law does in fact spread we must not be mislead as to the
process by which this extension lakes place. It has sometimes been thought of
as if it involved a kind of inarticulate expression of group will; the members
of group B perceive that the rules governing group A would furnish an apt law
for them; they therefore take over those rules by an act of tacit collective adop
tion. This hind of explanation abstracts fmm the interactional process underlying
customary law and ignores their ever-present communicative aspect. . . .
Generally we mav sav that where A and B have became familiar with a oractice
~ ~~~~ ~ ~ ~
ubtaming kl w& C &d D. A is Irkel) to adopt thus pattern in har a&, ; t uuar d
B. not srmply or necessarily becauw it has any s p l a l apmcsr for thelr smm.
##on. but because he know, B wdl undentand the meaning of hr, beharior and
will know how to react to it.
There remains for discussion one fulther . . . &on that . . . custom becomes
law only thmuah usage observed to have oersisted over a considerable oeriod.
~ ~
- - ~~~~~.
This b. agar . loo slmply a biew of the miner .
in pan bwaua of mistaken
~mplicatloh\ mad Into thc uord ~wromur) , and in pan bmuw il ic me ha1 nor-
nwlly 11 takes wme tlmes fur mclprocal ~nteraut~unrl expectations to "jell." But
there are circumstances in which customary law (or a phenomenon for which
we have no other name) can develop almost over night.
98. Pospisil, Anrhropology of Low.p. 110.
99. This was pouibly due to the detaildjurisdictlanal d e s hat applied in Kapwku law (see note 95).
100. Pospisil, Anthropology oflow,p. 348. See Benson, "Legal Evolution in Primitive Societies"
for further elaboration.
101. Hwbel, Low of P"mi1ive Man, p. 294.
102. Fuller. 7he Principles of Social Order, p. 243.
103. Friedman, "Private Creation and Enforcement of Law."
104. Peden, "Properly Rights in Celtic lrish Law"; and Murray N. Rothbard, For o No v Libeny
(New York: Macmillan Co.. 1973).
105. Bcnson. Lhenr o d Jusncc and references cried Ulcrein
IOh l b d , Benson. "The Sponl wwu Evolution of Cnmrnercwl Law": Leon E Trakman, &Low
Mrrchunr. llw E~,r,lurinofCummp1~~11 (I.~nlelun. Colo: Fred B. Rolhman and Co.. 19X3),
and references cited therein.
107. Terry Anderson and P. I. Hill, "An American Experiment Anarcho-Capitalism: The Not So
Wild. Wild West." Journal oflibertarian Stdi es 3 (1979): 9-29: Umbeck.
'
nteorv
,
of
.
Pmo-
. .
cny Rights; ~e n &n , "Lost \;iCtim"; and Benson, Me r r y ond ~ k e .
Journal of Libertarian Studies 14:1 (Winter 199899): 95100
1999 Center for Libertarian Studies
PRIVATE POLICE: A NOTE
Patrick Tinsley
*
A state which dwarfs its men, in order that they may be
more docile in its hands even for beneficial purposes
will find that with small men no great thing can really be
accomplished; and that the perfection of the machinery to
which it has sacrificed everything will in the end avail
it nothing, for want of the vital power which, in order
that the machine might work more smoothly, it has pre-
ferred to banish.
John Stuart Mill
There are those to whom the question of whether to priva-
tize the nations police forces is mere academic whimsya ques-
tion of consequence only to the eggheads and cranks of the Acade-
my, not to those who so solidly inhabit the real world. Most of
these believe the enforcement of law to be the exclusive province
of the state. Such a belief is rooted in an obvious falsehood: the
notion that there is a unique and singular commodity called en-
forcement of law. There is, in fact, no such singular commodity.
1
Enforcement of law is a phenomenon that admits of infinite
degrees and permutations. Take the case of a jewelry store. The
theft of its wares is a crime under the law. But the jewelry store
does not rely exclusivelyor even primarilyon the majesty of
the states enforcement of that law for its own security. The jew-
elry store engages the services of manifold private protection
outfits: it takes out an insurance policy on its gems, which are
kept under a locked glass display case, which can only be opened
by an employee, who is under the ever-vigilant eye of video
monitoring equipment, and who watches the customers with the
aid of convex mirrors, and keeps the stores cash in a locked
vault, which is in a back room, which is in turn locked at closing
time, and the stores alarm activated as the employees leave
and the armed night watchmen arrive. All of these are provided
by private companies in the business of providing security, and
all of which should give pause to those who consider the enforce-
ment of law uniquely the franchise of the government.
*
Patrick Tinsley is a recent college graduate.
1
See Murray N. Rothbard, For A New Liberty (New York: Macmillan, 1973), pp. 219
20.
96 Journal of Libertarian Studies
None of this is to deny that the enterprise of law enforcement
in America is largely the self-incurred responsibility of the
state. But with responsibility comes reckoning. The government
maintains police forces which collectively discharge a duty to
serve and protect the law-abiding citizenry. Have the govern-
ments police forces fulfilled this duty?
The evidence suggests unambiguously that they have not.
Crime rates per 100,000 peoplewhether measured by total
crime or violent crime or property crimeincreased by not less
than 100% in the decade of the 1960s.
2
Such evidence does little
to commend the service and protection afforded us by our public
police. That there has issued forth, against such unfriendly
evidence, an argument that calls upon us to blame for the surge
not the police, but rather the increasing tendency on the part of
the public to report crime, is testimony to the inexhaustible
malleability of the arguments of the American left.
Factual agreement, it seems, attaches to only the most incon-
trovertible of data: the murder rates. It is generally conceded
that swollen murder rates reflect something other than a growing
tendency to report the deedwhat with corpses presenting a
rather conspicuous presence and murdered persons a conspicuous
absence.
3
And the murder rates in large American cities between
the years of 1963 and 1971a period of less than a decadees-
calated at a show-stopping 100%. This leads an urbanite to the
clear conclusion that he is more likely to be murdered than was
an American soldier likely to be killed in World War II com-
bata datum in which the safety afforded to American citizens
by the public police fails to compare favorably with that afford-
ed American soldiers by the Nazis.
4
Such a dismal failure on the part of the public police lends a
terrible immediacy to the call for privatization. The following
will attempt to sketch out the workings of private protection ag-
encies while meeting the most significant objections.
5
2
U.S. Bureau of the Census, Historical Statistics of the United States, Colonial Times to
1970 (Washington, D.C.: U.S. Government Printing Office, 1974), p. 413.
3
See Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1980), p. 274.
4
James Q. Wilson, Thinking About Crime (New York: Basic Books, 1975), p. 17. See
also Sowell, Knowledge and Decisions, p. 274.
5
A common objections is that while the government may be too large, libertarians
who agitate to privatize the public police would throw out the baby with the bath-
water. The classic rejoinder to this claim was made in a speech by Harry Browne at
the 1996 Libertarian Party National Convention: We libertarians are throwing out
the baby with the bathwaterRosemarys baby!
Tinsley Private Police 97
PRIVATIZATION AND THE POOR
It will be roundly objected that private policing is undesir-
able insofar as only the wealthy could afford to implement it,
leaving the poor without mechanism of legal protection. There
are several solutions to this contingency consistent with the oper-
ation of a free market in law enforcement. First, however, it must
be made clear that a perfect system of law enforcement is not,
this side of paradise, an option. Therefore, in order to overcome
the argument for privatization, it does not suffice merely to ex-
pose therein a flaw or potential flaw, e.g. that the poor could not
(sufficiently) afford police protection. It must be concurrently
demonstrated that the public enforcement of law is more effec-
tive in these regards vis--vis the private. Given that Americas
poorest areas are among its most crime-riddenso much that ad
hoc citizen-volunteer patrols are currently mobilized to augment
the disintegrating capacities of public policeone should expect
no such demonstration to materialize.
Now, onward to the issue of how the poor shall obtain pro-
tection via the free market. The poor tend not to own their own
homesthe poor, it is safe to generalize, are a tenant lot. They
inhabit temporarily and voluntarily the property of a landlord
and they do so because he has offered housing and related amen-
ities that justify incurring the cost at which they are offered. In
order to attract tenants, then, a landlord will need to provide
police protection for his property and its inhabitants, or else he
will be quickly out of his property and even quicker out of his
tenants. The Bates Motel was never much of a hot spot.
And when the poor are not on their (rented) property, they
are, as a matter of definition, on someone elses. There, as partic-
ipants in the so-called free rider problem, the poor shall be the
beneficiaries of free police protection.
6
Toward clarification,
here is an analogy. There are products for which the bother of
charging money outweighs the prospects for profit; these prod-
ucts are thus offered free of charge to the individual user, more or
less in affiliation with the sale of coadunate goods. Examples of
this phenomenon abound: book matches are given away with and
without the sale of tobacco products; bathrooms, whether in res-
taurants or department stores or gas stations, are often open to
customers and the general public alike.
7
Police protection could
operate likewise.
6
See Walter Block, Public Goods and Externalities: The Case of Roads, Journal of
Libertarian Studies 7, no. 1 (Spring 1983): 134.
7
See David Friedman, The Machinery of Freedom (New Rochelle, N.Y.: Arlington
House, 1973), pp. 13738.
98 Journal of Libertarian Studies
Private property owners using their property for commercial
purposes would employ a protection agency to ensure that it is
commercial, and not criminal, activity that reigns.
8
Those of the
poorand the not-poorwould thereby enjoy police protection
while on private, commercial property. This arrangement is, to a
large extent, operative at present. One fears not that ones pur-
chases will be swiped in a shopping mallthere are mall secur-
ity guards to prevent that; and one frets not at all, in a bank, that
ones cash will be liftedthere are armed security guards to dis-
courage such things. It is when one is on public property, such as
Central Park, protected by a public police that halts the crimi-
nal elements much as a sieve halts water, that one counts ones
self lucky to escape with life, limb, and maidenhead preserved.
To illuminate the difference between the public and the private
enforcement of law, simply imagine the rate of criminal activity
at Central Park as prevailing at, say, Macys.
There is yet another manner in which the free market could
confer security services upon the poor. Victims of a crimepoor or
otherwisecould be awarded by the (private) courts a claim for
damages in an amount which corresponds to the gravity of the
crime. Such a claim would be transferable property.
9
Victims,
then, would have the option of selling a claim for damages to a
collection agency, which would proceed to apprehend the respon-
sible party and exact the fee. (Just as many poor plaintiffs com-
mand the services of a lawyer by agreeing to split any damages
forthcoming.) This action may be combined with a contractual
agreement between the victim and the agency to again collabo-
rate should a further crime be perpetrated against the former
party. Such a pact would cement the initial relationship be-
tween the victim and the collection agency, with the agencys
commitment to exact future incurred damages engendering the
protection of the victim via the power of deterrence. That is to
say, the collection agency that contracted to so serve a given in-
dividual would not provide that individual with active law
enforcement, e.g., cops on foot, or bicycle, or steed, or in cruisers;
rather, the contract itself would provide the individual with
8
It is good to bear in mind that this author advocates the privatization of the na-
tions streets. Streets and sidewalks would be, under privatization, commercial
property. For more on how roads could be paved, preserved, and protected on the
free market, see Murray N. Rothbard, For A New Liberty (New York: Macmillan,
1973), pp. 20218. Particularly noteworthy is the anecdote Rothbard therein re-
lates, to the effect that the level of crime in New Yorks Times Square, during a
public police strike, was not a whit higher than the level of crime that prevailed
when they were supposedly on the job.
9
See Friedman, The Machinery of Freedom.
Tinsley Private Police 99
passive law enforcement, would ward off the bad guys. This de-
terrence effect could be amplified by arranging for the contract to
be public knowledge, much as the owner of a car places promi-
nently notice of an effective car alarm.
PRIVATIZATION AND CORRUPTION
It is widely held that private firms, organized for the en-
forcement of law within the parameters implied by profit-mak-
ing, would be susceptible to bribery and corruption. The argument
is roughly as follows: private protection agencies are motivated
by the lure of profits; it would pay them, therefore, to engage in
thuggery, or to protect others who do so.
There is manifest in this argument a fundamental failure to
comprehend the workings of a free market. For one thing, private
protection agencies, as compared to the state, would be unable to
exercise coercion in the pursuit of clientele. A private protection
agency must convince potential clients that it is possessed of both
the wherewithal and the resolve to provide effective enforce-
ment of the law. Providing a guarantee to the customer is one
manner of doing so. Therefore, it is likely, or in any case possible,
that the protection agencies would woo clients by offering to in-
sure their lives and property. Manifestly, the protection agency
that underwrites its clients has a strong incentive to protect them
vigorouslyand a strong disincentive to countenance bribery and
corruption. Crimes perpetrated against its clients then become
crimes paid for by the agency, and only an agency bent on maso-
chism would allow for its officers to indulge criminal conduct.
In fact, it is the public police force that stands to profit from
look-the-other-way law enforcement. After all, arriving at its
funding, as it does, from (coerced) tax revenues, the public police
will not endure economic hardship if and when it fails to arrest
the onslaught of crime. Therefore, it pays for its officers to accept
bribes from the perpetrators of crime, offering in exchange clem-
ency. This fact was given neon prominence in the Knapp Commis-
sion Report on Police Corruption, published in 1972, which found
virtually every office in the entire NYPD to be corrupt.
10
Moreov-
10
See The Knapp Commission Report on Police Corruption (New York: George Braziller,
1972), p. 3:
Of course, not all policemen are corrupt. If we are to exclude such
petty infractions as free meals, an appreciable number do not en-
gage in any corrupt activities. Yet, with extremely rare exceptions,
even those who themselves engage in no corrupt activities are in-
volved in corruption in the sense that they take no steps to prevent
what they know or suspect to be going on around them.
100 Journal of Libertarian Studies
er, if indeed criminal activity grows while the public is being
protected by an unconcerned public police, it is very likely that
the police budget will increase as well. Crime, after all, can pay.
Which is not so much why the government runs the police as be-
cause the government runs the police.
THE HUBRIS OF CENTRAL CONTROL
The officials of the state, possessed of but fragmented knowl-
edge, nevertheless presume to determine by fiat the necessary
degree of police protection for the entire citizenry. It is axiomatic
that such charlatanry will lead to the inefficient use of scarce
resources. The state cannot succeed because it squelches that vital
powerhuman freedombut for want of which the machinery of
society might work more justly.
I
I January, 1975
The Libertarian Forum
Page 3
Society Without A State*
By Murray N. Rothbard
In attempting to outline how a "society without a State" - i.e. an
anarchist society - might function successfully, I would first like to
defuse two common but mistaken criticisms of this approach. First, is
the argument that in providing for such defense or protection services a s
courts, police, or even law itself, I am simply smuggling the State back
into society in another form, and that therefore the system I a m both
analyzing and advocating is not "really" anarchism. This sort of
criticism can only involve us in an endless and arid dispute over
semantics. Let me say from the beginning that I define the State as that
institution which possesses one or both (almost always both) of the
following properties: (1) i t acquires its income by the physical coercion
known as "taxation"; and (2) i t asserts and usually obtains a coerced
monopoly of the provision of defense service (police and courts) over a
given territorial area. Any institution, not possessing either of these
properties is not and cannot be, in accordance with my definition, a
"State". On the other hand, I define anarchist society as one where there
is no legal possibility for coercive aggression against the person or
property of any individual. Anarchists oppose the State because it has its
very being in such aggression, namely, the expropriation of private
property through taxation, the coercive exclusion of other providers of
'defense service from its territory, and all of the other depredations and
coercions that are built upon these twin foci of invasions of individual
rights.
Nor is our definition of the State arbitrary, for these two
characteristics have been possessed by what is generally acknowledged
t o be "States" throughout recorded history. The State, by its use of
physical coercion, has arrogated to itself a compulsory monopoly of
defense services over its territorial jurisdiction. But it is certainly
conceptually possible for such services to be supplied by private, non- ,
State institutions, and indeed such services have historically been
supplied by other organizations than the State. To be opposed to the State
is then not necessarily to be opposed to services that have often been
linked with i t ; to be opposed to the State does not necessarily imply that
we must be opposed to police protection, courts, arbitration, the minting
of money, postal service, or roads and highways. Some anarchists have
indeed been opposed to police and to all physical coercion in defense of
person and property, but this is not inherent in and is fundamentally
irrelevant to the anarchist position, which is precisely marked by
opposition to all physical coercion invasive of, or aggressing against,
person and property.
The crucial role of taxation may be seen in the fact that the State is the
only institution or organization in society which regularly and
systematically acquires i t s income through the use of physical coercion.
All other individuals or organizations acquire their income voluntarily,
either ( a) through the voluntary sale of goods and services to consumers
on the market, or (b) through voluntary gifts or donations by members or
other donors. If I cease or refrain from purchasing Wheaties on the
market, the Wheaties producers do not come after me with a gun or
prison to force me to purchase; if I fail to join the American
Philosophical Association, the association may not force me to join or
prevent me from giving up my membership. Only the State can do so;
only the State can confiscate my property or put me in jail if I do not pay
its tax-tribute. Therefore, only the State regularly exists and has its very
being by means of coercive depredations on private property.
Neither is it legitimate to challenge this sort of analysis by claiming
that in some other sense, the purchase of Wheaties or membership in the
A.P.A. is in some way "coercive"; there again, we can only be trapped in
an endless semantic dispute. Apart from other rebuttals which cannot be
considered here, I would simply say that anarchists ar e interested in the
abolition of this type of action: e.g. aggressive physical violence against
person and property, and that this i s how we define "coercion". Anyone
who is still unhappy with this use of the term "coercion" can simply
eliminate the word from this discussion, and substitute for it "physical
violence or -the threat thereof", with the only loss being in literary style
rather than in the substance of the argument. What anarchism proposes
to do, then, is to abolish the State, i.e. to abolish the regularized
institution of aggressive coercion.
It need hardly be added that the State habitually builds upon its
coercive source of income by adding a host of other aggressions upon
society: ranging from economic controls to the prohibition of
pornography to the compelling of religious observance to the mass
(Continued On Page 4)
Government And Economy -
(Continued From Page 2)
industrial countries to meet .the needs of this winter . . . Europe and
Japan are virtually awash in supplies." So here we have a vital clue: the
new restrictions and cartellizing of the U.S. are an attempt to combat -
not high oil prices - but the threat that market forces will break the
OPEC cartel and bring about a sharp drop in oil prices. Once again, we
are being conned by the Establishment, and both the Democratic and
Republican parties ar e collaborating in the swindle.
Back to Gold.
Inexorably, and in the teeth of extreme reluctance and hostility by the
U.S. authorities, gold is forcing its way, step by step, back into the central
monetary role that it deserves. After cutting loose from the private gold
market (in the 'ftwo-tier" system) in 1968, and after cutting the dollar
completely from the gold standard in 1971, the Establishment was
confident that gold was on the way to being banished forever, to be
replaced by the dollar or by a new paper fiat unit, completely controllable
by governments. Instead, gold has been forcing its way back, and a t each
step of the way the Administration has tried to "cover up" by claiming
that gold was now one step further out of playing an important monetary
role. More important even than the Treasury's finally and grudgingly
allowing the will of Congress to prevail and allowing the U.S. citizens to
buy and own gold, was the December, 1974 agreement at Martinique
between the U.S. and France. For decades, the U.S. has been trying to
push gold out of the picture by forcing other nations to evaluate it at an
absurdly and artificially low price, first $35 an ounce, and lately $42 an
ounce. But the enormous rise in the free gold market price in the last few
years, in response to the continuing depreciation of paper currencies, put
irresistible pressure on all countries to re-evaluate their gold stock at the
market price, and thereby to stave off impending financial bankruptcy.
Finally, at Martinique, the U.S. made the crucial concession, that "It
would be appropriate for any government which wished to do so to adopt
current market prices as the basis for valuation of its gold holdings."
Typically, the U.S. covered its surrender by asserting, once again, that
this was another step toward ending the monetary role of gold. Actually,
of course, the step was quite the reverse: for now, as country after
country upgrades its gold stock to evaluate it a t the market price, the
monetary role and importance of gold will enormously increase. Not only
that: the re-valuation could pave the way for an eventual return to a full-
fledged gold standard, i.e. the redeemability of dollars. and other
currencies in gold, which would not have been possible a t the artificially
low price. This possible return to gold is precisely what the inflationist
U.S. authorities were desperately anxious to prevent.
Following up the Martinique agreement, the French fulfilled the
promise of the agreement on January 9 by officially revaluing their gold
stock at the roughly market price of $170 an ounce. Can other countries be
far behind?
"Libertarian" Economist Note.
Professor Milton Friedman, alleged "libertarian" economist, was
asked to comment in a radio interview on President Ford's address on
January 13. Friedman endorsed the proposed tax on imported oil in order
to put pressure on the OPEC countries. What happened to Friedman's
proclaimed belief in unilateral free trade? Devotion to what cause has led
to Friedman' s abandonment of free trade-free market principles this
time? 0
Page 4 The Libertarian Forum January, 1975
Society Without State -
(Continued From Page 3)
murder of civilians in organized warfare. In short, that the State, in the
words of Albert Jay Nock, "claims and exercises a monopoly of crime"
over its territorial area.
The second criticism I would like to defuse before beginning the main
body of the paper is the common charge that anarchists "assume that all
people are good", and that without the State no crime would be
committed. In short, that anarchism assumes that with the abolition of
the State a New Anarchist Man will emerge, cooperative, humane, and
benevolent, so that no problem of crime will then plague the society. I
confess that I do not understand the basis for this charge. Whatever other
schools of anarchism profess - and I do not believe that they are open to
this charge - I certainly do not adopt this view. I assume with most
observers that mankind is a mixture of good and evil, of cooperative and
criminal tendencies. In my view, the anarchist society is one which
maximizes the tendencies for the good and the cooperative, while it
minimizes both the opportunity and the moral legitimacy of the evil and
the criminal. If the anarchist view is correct, and the State is indeed the
great legalized and socially legitimated channel for all manner of anti-
social crime - theft, oppression, mass murder - on a massive scale,
then surely the abolition of such an engine of crime can do nothing but
favor the good in man and discourage the bad.
A further point: in a profound sense, no social system, whether
anarchist or statist, can work at all unless most people are "good" in the
sense that they are not all hell-bent upon assaulting and robbing their
neighbors. If everyone were so disposed, no amount of protection,
whether State or private, could succeed in staving off chaos.
Furthermore, the more that people are disposed to be peaceful and not
aggress against their neighbors, the more successfully any social system
will work, and the fewer resources will need to be devoted to police
protection. The anarchist view holds that, given the "nature of man",
given the degree of goodness or badness at any point of time, anarchism
will maximize the opportunities for good and minimize the channels for
the bad. The rest depends on the values held by the individual members of
society. The only further point that need be made is that by eliminating
the living example and the social legitimacy of the massive legalized
crime of the State, anarchism will to a large extent promote peaceful
values in the minds of the public.
We cannot of course deal here with the numerous arguments in favor of
anarchism or against the State, moral, political, and economic. Nor can
we take up the various goods and services now provided by the State, and
show how private individuals and groups will be able to supply them far
more efficiently on the free market. Here we can only deal with perhaps
the most difficult area, the area where it is almost universally assumed
that the State must exist and act, even if it is only a "necessary evil"
instead of a positive good: the vital realm of defense or protection of
person and property against aggression. Surely, it is universally asserted,
the State is at least vitally necessary to provide police protection, the
judicial resolution of disputes and enforcement of contracts, and the
creation of the law itself that is to be enforced. My contention is that all of
these admittedly necessary services of protection can be satisfactorily
and efficiently supplied by private persons and institutions on the free
market.
One important caveat before we begin the body of this paper: new
proposals such as anarchism are almost always gauged against the
implicit assumption that the present, or statist, system works to
perfection. Any lacunae or difficulties with the picture of the anarchist
society are considered net liabilities, and enough to dismiss anarchism
out of hand. It is, in short, implicitly assumed that the State is doing its
self-assumed job of protecting person and property to perfection. We
cannot here go into the reasons why the State is bound to suffer inherently
from grave flaws and inefficiencies in such a task. All we need do now is
to point to the black and unprecedented record of the State through
history: no combination of private marauders can possibly begin to
match the State's unremitting record of theft, confiscation, oppression,
and mass murder. No collection of Mafia or private bank robbers can
begin to compare with all the Hiroshimas, Dresdens, and Lidices and
their analogs through the history of mankind.
This point can be made more philosophically: it is illegitimate to
compare the merits of anarchism and statism by starting with the
present system as the implicit given and then critically examining only
the anarchist alternative. What we must do is to begin at the zero point
and then critically examine both suggested alternatives. Suppose, for
example, that we were all suddenly dropped down on the earth de novo,
and that we were all then confronted with the question of what societal
arrangements to adopt. And suppose then that someone suggested: "We
are all bound to suffer from those of us who wish to aggress against their
fellow men. Let us than solve this problem of crime by handing all of our
weapons to the Jones family, over there, by giving all of our ultimate
power to settle disputes to that family. It that way, with their monopoly
of coercion and of ultimate decision making, the Jones family will be able
to protect each of us from each other." I submit that this proposal would
get very short shrift, except perhaps from the Jones family themselves.
And yet this is precisely the common argument for the existence of the
State. When we start from the zero point, as in the case of the Jones
family, the question of "who will guard the guardians?" becomes not
simply an abiding lacuna in the theory of the State but an overwhelming
barrier to its existence.
A final caveat: the anarchist is always at a disadvantage in attempting
to forecast the shape of the future anarchist society. For it is impossible
for observers to predict voluntary social arrangements, including the
provision of goods and services, on the free market. Suppose, for
example, that this were the year 1874, and someone predicted that
eventually there would be a radio manufacturing industry. To be able to
make such a forecast successfully, does he have to be challenged to state
immediately how many radio manufacturers there would be a century
hence, how big they would be, where they would be located, what
technology and marketing techniques they would use, etc.? Obviously,
such a challenge would make no sense, and in a profound sense the same
is true of those who demand a precise portrayal of the pattern of
protection activities on the market. Anarchism advocates the dissolution
of the State into social and market arrangements, and these
arrangements are far more flexible and less predictable than political
institutions. The most that we can do, then, is to offer broad guidelines
and perspectives on the shape of a projected anarchist society.
One important point to make here is that the advance of modern
technology makes anarchistic arrangements increasingly feasible. Take,
for example, the case of lighthouses, where it is often charged that it is
unfeasible for private lighthouse operators to row out to each ship to
charge it for use of the light. Apart from the fact that this argument
ignores the successful existence of private lighthouses in earlier days,
e.g. in England in the eighteenth century, another vital consideration is
that modern electronic technology makes charging each ship for the light
far more feasible. Thus, the ship would have to have paid for an
electronically controlled beam which could then be automatically turned
on for those ships which had paid for the service.
I1
Let us now turn to the problem of how disputes -in particular, disputes
over alleged violations of person and property, - would be resolved in an
anarchist society. First, it should be noted that all disputes involve two
parties: the plaintiff, the alleged victim of the crime or tort, and the
defendant, the alleged aggressor. In many cases of broken contract, of
course, each of the two parties alleging that the other is the culprit is at
the same time a plaintiff and a defendant.
An important point to remember is that any society, be it statist or
anarchist, has to have some way of resolving disputes that will gain a
majority consensus in society. There would be no need for courts or
arbitrators if everyone were omniscient, and knew instantaneously which
persons were guilty of any given crime or violation of contract. Since
none of us are omniscient, there has to be some method of deciding who is
the criminal or lawbreaker which will gain legitimacy, in short whose
decision will be accepted by the great majority of the public.
In the first place, a dispute may be resolved voluntarily between the
two parties themselves, either unaided or with the help of a third
mediator. This poses no problem, and will automatically be accepted by
society at large. It is so accepted even now, much less in a society imbued
with the anarchistic values of peaceful cooperation and agreement.
Secondly and similarly, the two parties, unable to reach agreement, may
decide to submit voluntarily to the decision.of an arbitrator. This
agreement may arise either after a dispute has arisen, or be provided for
in advance in the original contract. Again, there is no problem in such an
(Continued On Page 5 )
January, 1975 The Liber
Society Without State -
(Continued From Page 4)
arrangement gaining legitimacy. Even in the present statist era, the
notorious inefficiency and coercive and cumbersome procedures of the
politically run government courts has led increasing numbers of citizens
to turn to voluntary and expert arbitration for a speedy and harmonious
settling of disputes.
Thus, William C. Wooldridge has written that
"arbitration has grown to proportions that make the courts
a secondary recourse in many areas and completely
superfluous in others. The ancient fear of the courts that
arbitration would 'oust' them of their jurisdiction has been
fulfilled with a vengeance the common-law judges probably
never anticipated. Insurance companies adjust over fifty
thousand claims a year among themselves through
arbitration, and the American Arbitration Association
(AAA), with headquarters in New York and twenty-five
regional offices across the country, last year conducted
over twenty-two thousand arbitrations. Its twenty-three
thousand associates available to serve as arbitrators may
outnumber the total number of judicial personnel . . . in the
United States . . . Add to this the unknown number of
individuals who arbitrate disputes within particular
industries or in particular localities, without formal AAA
affiliation, and the quantitatively secondary role of official
courts begins to be apparent." *
Wooldridgk adds the important point that, in addition to the speed of
arbitration procedures vis a vis the courts, the arbitrators can proceed as
experts in disregard of the official government law; in a profound sense,
then, they serve to create a voluntary body of private law. "In other
words," states Wooldridge, "the system of extralegal, voluntary courts
has progressed hand in hand with a body of private law; the rules of the
state are circumvented by the same process that circumvents the forums
established for the settlement of disputes over those rules . . . In short, a
private agreement between two people, a bilateral "law", has supplanted
the official law. The writ of the sovereign has ceased to run, and for it is
substituted a rule tacitly or explicitly agreed to by the parties."
Wooldridge concludes that "if an arbitrator can choose to ignore a penal
damage rule or the statute of limitations applicable to the claim before
him (and it is generally conceded that he has that power), arbitration can
be viewed as a practically revolutionary instrument for self-liberation
from the law . . ."
It may be objected that arbitration only works successfully because the
courts enforce the award of the arbitrator. Wooldridge points out,
however, that arbitration was unenforceable in the American courts
before 1920, but that this did not prevent voluntary arbitration from being
successful and expanding in the United States and in England. He points,
furthermore, to the successful operations of merchant courts since the
Middle Ages, those courts which successfully developed the entire body of
the law merchant. None of those courts possessed the power of
enforcement. He might have added the private courts of shippers which
developed the body of admiralty law in a similar way.
How then did these private, "anarchistic", and voluntary courts insure
the acceptance of their decisions? By the method of social ostracism, and
the refusal to deal any further with the offending merchant. This method
of voluntary "enforcement", indeed, proved highly successful.
Wooldridge writes that "the merchants' courts were voluntary, and if a
man ignored their judgment, he could not be sent to jail. . . Nevertheless,
it is apparent that. . . (their) decisions were generally respected even by
the losers; otherwise people would never have used them in the first
place . . . Merchants made their courts work simply by agreeing to abide
by the results. The merchant who broke the understanding would not be
sent to jail, to be sure, but neither would he long continue to be a
merchant, for the compliance exacte'd by his fellows . . . proved if
anything more effective than physical coercion." Nor did this voluntary
method fail to work in modern times. Wooldridge writes that it was
precisely in the years before 1920, when arbitration awards could not be
enforced in the courts,
"that arbitration caught on and developed a following in the
American mercantile community. Its popularity, gained at
tarian Forum Page 5
a time when abiding by an agreement to arbitrate had to be
as voluntary as the agreement itself, casts doubt on
whether legal coercion was an essential adjunct to the
settlement of most disputes. Cases of refusal to abide by an
arbitrator's award were rare; one founder of the American
Arbitration Association could not recall a single example.
Like their medieval forerunners, merchants in the
Americas did not have to rely on any sanctions other than
those they could collectively impose on each other. One who
refused to pay up might find access to his association's
tribunal cut off in the future, or his name released to the
membership of his trade association; these penalties were
far more fearsome than the cost of the award with which he
disagreed. Voluntary and private adjudications were
voluntarily and privately adhered to, if not out of honor, out
of the self-interest of businessmen who knew that the
arbitral mode of dispute settlement would cease to be
available to them very quickly if they ignored an award." '
I It should also be pointed out that modern technology makes even more
feasible the collection and dissemination of information about p6ople's
credit ratings and records of keeping or violating their contracts or
arbitration agreements. Presumably, an anarchist society would see the
expansion of this sort of dissemination of data and thereby facilitate the
ostracism or boycotting of contract and arbitration violators.
How would arbitrators be selected in an anarchist society? In the same
way as they are chosen now, and as they were chosen in the days of
strictly voluntary arbitration: the arbitrators with the best reputation for
efficiency and probity would be chosen by the various parties on the
market. As in other processes of the market, the arbitrators with the best
record in settiing disputes will come to gain an increasing amount of
business, and those with poor records will no longer enjoy clients, and
have to shift to another line of endeavor. Here it must beemphasized that
parties in dispute will seek out those arbitrators with the best reputation
for both expertise and impartiality, and that inefficient or biased
arbitrators will rapidly have to find another occupation.
Thus, the Tannehills emphasize:
"the advocates of government see initiated force (the legal
force of government) as the only solution to social disputes.
According to them, if everyone in society were not forced to
use the same court system. . . disputes would be insoluble.
Apparently it doesn't occur to them that disputing parties
are capable of freely choosing their own arbiters . . . They
have not realized that dis~utants would. in fact. be far
better off if they could chooke among competing arbitration
agencies so that they could reap the benefits of competition
and specialization. 1t should be-obvious that a courtsystem
which has a monopoly guaranteed by the force of statutory
law will not give as good quality service as will free-market
arbitration agencies which must compete for their
customers . . .
Perhaps the least tenable argument for government
arbitration of disputes is the one which holds that
governmental judges are more impartial because they
operate outside the market and so have no vested interests.
. . owing political allegiance to government is certainly no
guarantee of impartiality! A governmental judge is always
impelled to be partial - in favor of the government, from
whom he gets his pay and his power! On the other hand, an
arbiter who sells his services in a free market knows that he
must be as scrupulously honest, fair, and impartial as
possible or no pair of disputants will buy his services to
arbitrate their dispute. A free-market aribter depends for
his livelihood on his skill and fairness at settling disputes. A
governmental judge depends on political pull." '
If desired, furthermore, the contracting parties could provide in
advance for a series of arbitrators:
"It would be more economical and in most cases quite
sufficient to have only one arbitration agency to hear the
case. But if the parties felt that a further appeal might be
necessary and were willing to risk the extra expense, they
(Continued On Page 6)
Page 6 The Libertarian Forum January, 1975
Society Without State -
(Continued From Page 5)
could provide for a succession of two or even more
arbitration agencies. The names of these agencies would be
written into the contract in order from the 'first court of
appeal' to the 'last court of appeal'. I t would be neither
necessary nor desirable to have one single, final court of
appeal for every person in the society, as we have today in
the United States Supreme Court."
Arbitration, then poses little difficulty for a portrayal of the free
society. But what of torts or crimes of aggression where there has been
no contract? Or suppose that the breaker of a contract defies the
arbitration award? Is ostracism enough? In short, how can courts develop
in the free-market, anarchist society which will have the power to
enforce judgments against criminals or contract-breakers?
In the wide sense, defense service consists of guards or police who use
force in defending person and property against attack, and judges or
courts whose role is to use socially accepted procedures to determine who
the criminals or tortfeasors are, as well as to enforce judicial awards,
such as damages or the keeping of contracts. On the free market, many
scenarios are possible on the relationship between the private courts and
the police; they may be "vertically integrated", for example, or their
services may be supplied by separate firms. Furthermore, it seems likely
that police service will be supplied by insurance companies who will
provide crime-insurance to their clients. In that case, insurance
companies will pay off the victims of crime or the breaking of contracts
or arbitration awards, and then pursue the aggressors in court to recoup
I
their losses. There is a natural market connection between insurance
companies and defense service, since they need pay out less benefits in
proportion gs they are able to keep down the rate of crime.
Courts might either charge fees for their services, with the losers of
cases obliged to pay court costs, or else they may subsist on monthly or
yearly premiums by their clients, who may be either individuals or the
police or insurance agencies. Suppose, for example, that Smith is an
aggrieved party, either because he has been assaulted or robbed, or
because an arbitration award in his favor has not been honored. Smith
believes that Jones is the party guilty of the crime. Smith then goes to a
court, Court A, of which he is a client, and brings charges against Jones
as a defendant. In my view, the hallmark of an anarchist society is one
where no man may legally compel someone who is not a convicted
criminal to do anything, since that would be aggression against an
innocent man' s person or property. Therefore, Court A can only invite
rather than subpoena Jones to attend his trial. Of course, if Jones refuses
to appear or send a representative, his side of the case will not be heard.
The trial of Jones proceeds. Suppose that Court A finds Jones innocent. In
my view, part of the generally accepted Law Code of the anarchist
society (on which see further below), is that this must end the matter,
unless Smith can prove charges of gross incompetence or bias on the part
of the court.
Suppose, next, that Court A finds Jones guilty. Jones might accept the
verdict, either because he too is a client of the same court, because he
knows he is guilty, or for some other reason. In that case, Court A
proceeds to exercise judgment against Jones. Neither of these instances
pose very difficult problems for our picture of the anarchist society. But
suppose, instead, that Jones contests the decision; he, then, goes to his
court, Court B, and the case is retried there. Suppose that Court B, too,
finds Jones guilty. Again, it seems to me that the accepted Law Code of
the anarchist society will assert that this ends the matter; both parties
have had their say in courts which each has selected, and the decision for
guilt is unanimous.
Suppose, however, the most difficult case: That Court B finds Jones
innocent. The two courts, each subscribed to by one of the two parties.
have split their verdicts. In that case, the two courts will submit the case
to an appeals court, or arbitrator, which the two courts agree upon. There
seems to be no real difficulty about the concept of an appeals court. As in
the case of arbitration contracts, it seems very likely that the various
private courts in the society will have prior agreements to submit their
disputes to a particular appeals court. How will the appeals judges be
chosen? Again, as in the case of arbitrators or of the first judges on the
free market, they will be chosen for their e-xpertise and reputation for
efficiency, honesty and integrity. Obviously. appea!s judges who a r e
inefficient or biased will scarcely be chosen by courts who will have a
dispute. The point here is that there is no need for a legally established or
institutionalized single, monopoly appeals court system, as States now
provide. There is no reason why there cannot arise a multitude of
efficient and honest appeals judges who will be selected by the disputant
courts, just as there are numerous private arbitrators on the market
today. The appeals court renders its decision, and the courts proceed to
enforce it if, in o w example, Jones is considered guilty - unless, of
course, Jones can prove bias in some other court proceedings.
No society can have unlimited judicial appeals, for in that case there
would be no point to having judges or courts a t all. Therefore, every
society, whether statist or anarchist, will have to have some socially
accepted cut-off point for trials and appeals. My suggestion is the rule
that the agreement of any two courts be decisive. "Two" is not an
arbitrary figure, for it reflects the fact that there ar e two parties, the
plaintiff and the defendant, to any alleged crime or contract dispute.
If the courts are to be empowered to enforce decisions against guilty
~a r t i e s . does this not bring back the State in another form and therebv
negate 'anarchism? No, f t r a t the beginning of this paper I explicit&
defined anarchism in such a way as not to rule out the use of defensive
force -force in defense of and property -by privately supported
agencies. In the same way, it is not bringing back the State to allow
persons to use force to defend themselves against aggression, or to hire
guards or police agencies to defend them.
It should be noted, however, that in the anarchist society there will be
no "district attorney" to press charges on behalf of "society". Only the
victims will press charges as the plaintiffs. If, then, these victims should
happen to be absolute pacifists who ar e opposed even to defensive force,
then they will simply not press charges in the courts or otherwise
retaliate against those who have aggressed against them. In a f r ee
society that would be their right. If the victim should suffer from murder,
then his heir would have the right to press the charges.
What of the Hatfield-and-McCoy problem? Suppose that a Hatfield kills
a McCoy, and that McCoy's heir does not belong to a private insurance,
police agency, or court, and decides to retaliate himself? Since, under
anarchism there can be no coercion of the non-criminal, McCoy would
have the perfect right to do so. No one may be compelled to bring his case
to a court. Indeed, since the right to hire police or courts flows from the
right of self-defense against aggression, it would be inconsistent and in
contradiction to the very basis of the free society to institute such
compulsion. Suppose, then, that the surviving McCoy finds what he
believes to be the guilty Hatfield and kills him in turn? What then? This is
fine, except that McCoy may have to worry about charges being brought
against him by a surviving Hatfield. Here it must be emphasized that in
the law of the anarchist society based on defense against aggression, the
courts would not be able to proceed against McCoy if in fact he killed the
right Hatfield. His problem would arise if the courts should find that he
made a grievous mistake, and killed the wrong man; in that case, he in
turn would be found guilty of murder. Surely, in most instances,
individuals will wish to obviate such problems by taking their case to a
court and thereby gain social acceptability for their defensive retaliation
- not for the act of retaliation but for the correctness of deciding who the
criminal in any given case might be. The purpose of the judicial process,
indeed, is to find a way of general agreement on who might be the
criminal or contract-breaker in any given case. The judicial process is
not a good in itself; thus, in the case of an assassination, such as Jack
Ruby's murder of Oswald, on public television, there i s no need for a
complex judicial process since the name of the murderer is evident to all.
Will not the possibility exist of a private court that may turn venal and
dishonest, or of a private police force that turns criminal and extorts
money by coercion? Of course such an event may occur, given the
propensities of human nature. Anarchism is not a moral cure-all. But the
important point is that market forces exist to.place severe checks on such
possibilities, especially in contrast to a society where a State exists. For,
in the first place, judges, like arbitrators, will prosper on the market in
proportion to their reputation for efficiency and impartiality. Secondly,
on the free market important checks and balances exist against venal
courts or criminal police forces. Namely, that-there are competing courts
and police agencies to whom the victims may turn for redress. If the
"Prudential Police Agency" should turn outlaw and extract revenue from
\ict:rns by coercion,-the "latter would have the option of turning to the _
'Mutual" or "Equitable" Police Agency for defense and for pressing
(Continued On Page 7)
/ January, 1915 The Libertarian Forum Page 7
Society Without State -
I
(Continued From Page 6)
charges against Prudential. These ar e the genuine "checks and
1 balances" of the free market, genuine in contrast to the phony checks and
balances of a State system, where all the alleged "balancing" agencies
are in the hands of one monopoly government. Indeed, given the
monopoly "protection service" of a State, what is there to prevent a State
, from using its monopoly channels of coercion to extort money from the
public? What are the checks and limits of the State? None, except for the
extremely difficult course of revolution against a Power with all of the
guns in its hands. In fact, the State provides an easy, legitimated channel
lor crime and aggression, since it has its very being in the crime of tax-
theft, and the coerced monopoly of "protection." It is the State, indeed,
that functions as a mighty "protection racket" on a giant and massive
scale. It is the State that says: "Pay us for your 'protection' or else." In
the light of the massive and inherent activities of the State, the danger of
a "protection racket" emerging from one or more private police agencies
is relatively small indeed.
Moreover, it must be emphasized that a crucial element in the power of
the State is its legitimacy in the eyes of the majority of the public, the
[act that after centuries of propaganda, the depredations of the State are
looked upon rather as benevolent services. Taxation is generally not seen
as theft, nor war a s mass murder, nor conscription as slavery. Should a
private police agency turn outlaw, should "Prudential" become a
protection racket, it would then lack the social legitimacy which the State
has managed to accrue to itself over the centuries. "Prudential" would
, be seen by all as bandits, rather than as legitimate or divinely appointed
"sovereigns", bent on promoting the "common good" or the "general
welfare". And lacking such legitimacy, Prudential would have to face the
wrath of the public and the defense and retaliation of the other private
defense agencies, the police and courts, on the free market. Given these
inherent checks and limits, a successful transformation from a free
society to bandit rule becomes most unlikely. Indeed, historically, it has
been very difficult for a State to arise to supplant a stateless society;
usually, it has come about through external conquest rather than by
evolution from within a society.
Within the anarchist camp, there has been much dispute on whether the
private courts would have to be bound by a basic, common Law Code.
Ingenious attempts have been made to work out a system where the laws
or standards of decision-making by the courts would differ completely
from one to another. "ut in my view all would have to abide by the basic
Law Code, in particular, prohibition of aggression against person and
property, in order to fulfill our definition of anarchism as a system which
provides no legal sanction for such aggression. Suppose, for example,
that one group of people in society hold that all redheads are demons who
deserve to be shot on sight. Suppose that Jones, one of this group, shoots
Smith, a redhead. Suppose that Smith or his heir presses charges in a
wwt . but that Jones' court, in philosophic agreement with Jones. finds
him innocent therefore. I t seems to me that in order to be considered
legitimate, any court would have to follow the basic libertarian law code
of the inviolate right of person and property. For otherwise, courts might
legally subscribe to a code which sanctions such aggression in various
cases. and which to that extent would violate the definition of anarchism
and introduce, if not the State, then a strong element of statishness or
legalized aggression into the society.
But again I see no insuperable difficulties here. For in that case,
anarchists, in agitating for their creed, will simply include in their
agitation the idea of a general libertarian Law Code as part and parcel of
the anarchist creed of abolition of legalized aggression against person or
Property in the society.
In contrast to the general law code, other aspects of court decisions
could legitimately vary in accordance with the market or the wishes of
the clients e.g., the language the cases will be conducted in, the number
of judges to be involved, etc.
There are other problems of the basic Law Code which there is no time
to go into here: for example, the definition of just property titles or the
Westion of legitimate punishment of convicted offenders - though the
latter problem of course exists in statist legal systems as well. The
basic point, however, is that the State is not needed to arrive at legal
Principles or their elaboration: indeed, much of the common law, the law
New Rothbard Books!
January 17 is the publication date of the first volume of Murray
Rothbard' s projected multi-volume history of colonial America,
Conceived in Liberty. Published by Arlington House and over 500 pages in
length, Volume, I covers the American colonies during the 17th century.
Note: this is not an economic history, but a general history dealing with
all aspects of the new American colonies: ideological, religious, social,
and political, as well as economic. The general focus of the book is -
surprise! - on liberty and voluntafy social arrangements ("social
power") vs. the State. Price is $15.00
Why the need for so many pages on the colonial era? Despite the fact
that American history textbooks dismiss the colonial era in 20 or so
pages, this period covers almost 170 years, and more if we include the
pre-colonial explorations. An enormous number of exciting and important
events occurred during these years, and Conceived in Liberty brings us
the full narrative flavor of the period, the actual events that occurred in
their historical cause-and-effect sequence. Furthermore, while many
standard textbook "heroes" ar e debunked and shown to have feet of clay,
other, totally forgotten libertarian heroes are rediscovered.
Also, the Libertarian Review Press (422 First St. S.E., Washington,
D.C. 20003) has just reprinted, in booklet form, Murray Rothbard's 1962
essay, "The Case for a 100 Percent Gold Dollar", which had appeared in a
totally neglected book by L. Yeager, ed., In Search of a Monetary
Constitution (Harvard University Press). Needless to say, the topic is far
more timely now than it was 13 years ago. Copies of The Case for a 100
Percent Gold Dollar may be obtained for $2.00 from the Libertarian
Revlew Press. 0
"Herein, indeed, lies the chief merit of democracy, when all is said and
done: it may be clumsy, i t may be swinish, it may be unutterably
incompetent and dishonest, but it is never dismal - its processes, even
when they irritate, never actually bore."
- H. L. Mencken
merchant, admiralty law, and private law in general, grew up apart from
the State, by judges not making the law but finding it on the basis of
agreed upon principles derived either from custom or reason. ' The idea
that the State is needed to make law is as much a myth as that the State is
needed to supply postal or police service.
Enough has been said here, I believe, to indicate that an anarchist
system for settling disputes would be both viable and self-subsistent: that
once adopted, it could work and continue indefinitely. How to arrive at
that system is of course a very different problem, but certainly at the
very least it will not likely come about unless people are convinced of its
workability, ar e convinced, in short, that the State is not a necessary evil
*A paper delivered before the American Society for Political and Legal
Philosophy, Washington, D. C., on Dec. 28, 1974.
*William C. Wooldridge, Uncle Sam, the Monopoly Man (New Rochelle,
N.Y.: Arlington House, 1970), p. 101.
' Ibid., pp. 103-04.
; Ibid., pp. 95-96.
' Ibid., pp. 100-101
' Morris and Linda Tannehill, The Market for Liberty (Lansing,
Michigan: privately printed, 19701, pp. 65-67.
Ibid., p. 68.
E.g. David Friedman, The Machinery of Freedom (New York: Harper
& Row, 1973).
', For an elaboration of these points, see Murray N. Rothbard, For A New
Liberty (New Yor k Macmillan, 1973).
- Thus. see Bruno Leoni, Freedom and the Law (Princeton, N.J.: D. Van
Nostrand Co., 1961). U
Customary Law with Private Means
of Resolving Disputes and Dispensing
Justice: A Description of a Modern
System of Law and Order
without State Coercion
by Bruce L. Benson
Professor of Economics
Florida State University
It is not actually possible to describe what a system of privately produced law
and order would be like in modem society because one cannot describe what does
not exist, and, more fundamentally, guesses based on historic privatized systems
(and there have been many; some are referred to below) or current trends in
privatization may miss the mark substantially. The sophisticated crime protec-
tion and prevention equipment and the level of training and skill possessed by
many crime prevention specialists today may be archaic compared to what would
emerge as a result of the incentives created by full privatization. At the turn of
the century, who but the wildest, most fantastic science fiction writers could have
predicted the revolution in communications and computer technology we are seeing
today, for instance? Some will consider the arguments that follow to fit in the
category of science fiction too, but an attempt will nonetheless be made to describe
how a modem society might function under a system of customarily produced
and privately enforced and adjudicated laws. Some of the following predictions
are made with considerable confidence after an extensive study of the scholarly
literature on historical customary law systems, modern arbitration and mediation
processes, and other related issues, but others are no more than educated guesses.
Author's note: This paper was prepared for and presented at a June 1989 Liberty Fund Conference
on Law, Liberty, and Responsible Individuals t h t was organized by the Pacific Research Institute
for Public Policy. It draws from and consolidates material that appears in a forthcoming book financed
by the Pacific Research Institute titled 7he Enterprise of h w : Jut i ce Without the State.
26 THE JOURNAL OF LIBERTARIAN STUDIES Fall
It should be added that mine is not the first effort to visualize such a system,
so the following discussion draws heavily from work by people like Bamett, Fried-
man, Rothhard, Tucker, Smith, Sneed, Becker, and Stigler, among others.
Customary Law: The Unwritten Social Contract
James Buchanan posed the following question: If government is dismantled,
"how do rights re-emerge and come to command respect? How do 'laws' emerge
that carry with them general respect for their 'legitimacy'?"' He contended that
collective action would be necessary to devise a "social contract" or "constitu-
tion'' designed to define the rights of the people in the first place and to establish
a limited govenunent to enforce them.' However, customary laws emerge spon-
taneously as a consequence of cooperation induced by reciprocitie~.~ Reciprocity,
in fact, provides the basis for recognition of duty or ohlilgation under customary
law.4 Cooperation does not require collective (governmental) action. Furthermore,
the rules of obligation recognized under all the customary law systems that have
existed have always focused on individual rights, including the right to private
property. That has been the basis for customary laws from primitive societies5
through the Middle age^,^ and for all the remnants of such law that exist today.
As Tucker pointed out, in a free society without government imposition or
enforcement of laws, "man's only duty is to respect others' rights . . . [and] man's
only right over others is to enforce that duty."' The many reasons to expect private
property rights to he recognized as the dominant rules of obligation in a customary
law system will become apparent in the following discussion. Such law requires
neither a written constitution nor legislative authority. Indeed, as Hayek suggested,
"Individual freedom, wherever it has existed, has been largely the product of
a prevailing respect for such principles which, however, have never been fully
articulated in constitutional documents. Freedom has been preserved for prolonged
periods because such principles, vaguely and dimly perceived, have governed
public opi ni ~n. " ~
Lon Fuller maintained that customary law is appropriately viewed as
a branch of constitutional law, largely and properly developed outside the
framework of our written constitutions. It is constitutional law in that it
involves the allocation among various institutions . . . of legal power, that
is, the authority to enact rules and to reach decisions that will be regarded
as properly binding on those affected by them.9
Indeed, a privatized system of customary law based on reciprocity is not only
possible, but has strong historical precedents.1 The fact is that through much
of history custom has been much more important in determining rules of conduct
than written constitutions, legislation, or precedent.
Even members of primitive groups face strong incentives to develop a system
of norms that, given enforcement, protects the rights and property of individual
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS 27
members of the group." Cooperative establishment of rules of conduct based
on individual freedom and private property creates significant reciprocal benefits.
The incentives for such development and the process itself are not much different
from those of other institutions that promote effective and efficient cooperation
within the system.'2 A spontaneous lawmaking process can be viewed as similar
to the spontaneous development of language. Indeed, Fuller described customary
law as a "language of interaction."13 No government was ever instrumental in
the development of a language. Languages in both spoken and written forms
develop over time through the spontaneous interactions of many independent
individuals-individuals with strong incentives to develop a common language
that facilitates interaction and cooperation. In fact, many other arrangements
develop spontaneously for the same reasons-trading systems and markets,
religious systems and congregations, extended family systems, clans, villages,
cities, transportation routes and customary law. Customary law based on widely
held norms and equity emerges, as Bennan wrote, "on the ground"; it is "less
programmatic" than legislative law imposed from above." Actually, many of
the laws in modem societies that are widely respected and adhered to (that is,
violated relatively infrequently) are laws that developed from the "ground"
because legislation is often codification of customary law.15
Characteristics of Customary Law
Offenses in a stateless legal system would be treated as tons. Many "crimes"
would still be illegal, of course, particularly if they have victims. Nonetheless,
certain types of activities that are currently defined as criminal would probably
be allowed. Activities currently carried out in black markets (gambling, prostitu-
tion, the use and sale of marijuana and most other drugs) would probably be legal,
for instance, since these actions generally do not have identifiable victims, and
few people are likely to be willing to pay for their enforcement.
Of course, it is possible that a group may voluntarily cooperate (as opposed
to being coerced into cooperating) to enforce a law where no identifiable victim
exists if virtually everyone in the relevant group believes that the law should be
enforced. But in a stateless system of law and enforcement, the allocation of
enforcement resources would be determined by individual willingness to pay rather
than by political strength or bureaucratic discretion over common pool resources.16
"People who want to control other people's lives are rarely eager to pay for the
privilege. They usually expect to be paid for the service they provide for their
victims."" A private system of law would clearly be strongly biased toward
individual freedom when individual action does no harm to another's physical
person or property.
The possibility of a community having its own law, differing substantially from
other communities, does not mean that an irrational patchwork of entirely dif-
28 THE JOURNAL OF LIBERTARIAN STUDIES Fall
ferent law systems will exist. History demonstrates that standardization of many
aspects of customary law over very large geographic areas would arise.18 There
certainly may be relatively minor differences, but perhaps even less differentia-
tion would occur than exists from state to state and even city to city under the
political system of law we currently have. Consider the privately developed English
language, for example. The basic rules of English are such that people from Maine
can communicate with people from Alabama, New York, Minnesota, Texas,
Nebraska, and from the regions of Great Britain, Canada, Australia, New Zealand,
and South Africa. Tremendous levels of standardization dominate all the regional
differences in language, and in customary law.19
Punishment for Law Breakers
A significant advantage of a "victim oriented system of law is ". . . that speci-
fying the victim has the practical function of giving someone an incentive to pur-
sue the case."20 This incentive arises because of the nature of the "punishment"
that would exist. The goal of the private enforcement system, given a violation
of the law, would be restitution for the victim, and thus punishment would typically
take the form of a fine (payable to the victim) of at least sufficient magnitude
to compensate the victim for all losses and cover the full cost of bringing the
offender to justice. This prediction finds strong support in the historical evidence.
All systems of privately enforced customary law have been restitution oriented
in this fashion, with fines as the major form of punishment."
Fines are very efficient compared to modem methods of punishment such as
imprisonment, which use up resources like guards and other personnel, the capital
and resources needed to build the prisons, and the prisoners' time.== Fines con-
sume far fewer resources. Some offenders may require close supervision in prison-
like work places to ensure payment, as noted below, but the prisoner's own time
is not wasted in that he is working to produce goods and services that can be
sold in order to pay off the debt.
Appropriately set fines can also provide a significant deterrent. Suppose fines
are set equal to the full cost to the victim plus the full cost of bringing the offender
to justice, all divided by the probability that the offender will be brought to justice,
as suggested by Becker and Stigler.23 Consider for example the fine for stealing
a car. If half the car thefts are solved, costs borne by the victim and incurred
in law enforcement would be divided by one half or, in effect, multiplied by two.
The fine would be double the damages. The benefit to the offender of stealing
the car is the value of the car. Obviously, the expected cost of the crime is greater
than the expected benefit if the courts set the same probabilities that the offenders
perceive. Offenders, of course, may and probably do have a different perception
of risk than victims, and perhaps judges, but the actual fine would still be quite
large relative to the gain for the robber since the probability would clearly be
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS 29
less than one. Private courts may not determine fines in precisely the manner
discussed here,24 but private citizens who contract with courts and enforcers would
be attracted to those firms that are effective at preventing (deterring) offenses-
that is, to enforcers who make significant efforts to recover for the victim and
judges whose fines are clearly high enough to compensate the victim and the
enforcer. (Naturally a judge will be concerned about recovering his own costs
as well since the loser will pay the court costs under this sort of system.)
The fine and victim restitution emphasis of privately enforced law provides
another reason to suspect that few laws against victimless crimes would arise,
and even if they did, few resources would be devoted to their enforcement. It
is certainly possible that fines could be dictated by some tightly knit community.
Incentives could be created to enforce such laws as well, if, for instance, a right
to the collected fine is given to a successful enforcer. Again, laws against drugs,
prostitution, gambling, and so on, could arise under a system of customary law-
they are simply not nearly as likely to arise as laws against the violation of another
individual's rights.
Activities that clearly would be finable, and therefore deterred, are offenses
by private law enforcers against innocent citizens. Since falsifying violations,
falsely charging innocent people of wrongdoing, and bullying citizens violate the
rights of those who are innocent, a private, victim-oriented system of law would
require full compensation from enforcers for anyone acquitted of a charge or
mistreated. This implies that the loser in a court case would pay the full cost
of the court appearance.
Fines as a primary form of punishment would also create incentives for those
guilty of committing an offense to avoid unnecessary uses of court time, since
fines levied by the courts would include court costs. Thus unsuccessful efforts
by a guilty party to hide his guilt or drag out a trial would result in higher fines.
This would encourage out-of-court settlements between offender and victim. Of
course, this out-of-court settlement would not be like the plea bargaining of today's
system. Victims would receive satisfactory restitution under private out-of-court
settlements because the bargain would be between the victim and offender, not
between the offender and apublic prosecutor. The offender simply would avoid
the higher payment to cover court costs in this case, while modem plea bargaining
typically "forgives" a criminal for a certain portion of crimes committed in
exchange for willingly admitting to and accepting punishment for the rest. Thus
some victims do not even receive the satisfaction of knowing that the criminal
has been punished, much less any restitution. Differential fines for those who
admit guilt and those who try to hide it may even become a formal part of the
customary law system. Such was the case in medieval Iceland's system of privately
produced and enforced law, for instance, where ". . . the difference between
two sorts of offenses provided a high 'differential punishment' for the 'offense'
of concealing one's crime, an offense which imposed serious costs. . . ."'5
30 THE JOURNAL OF LIBERTARIAN STUDIES Fall
The preceding discussion suggests advantages to fines as the primary form of
punishment for the offender as well. Imprisonment not only fails to compensate
the victim, but typically requires the victim to bear more costs (e.g., the cost
of cooperating in prosecution). Under these circumstances, "it is not surprising,
therefore, that the anger and fear felt toward ex-convicts who in fact have not
paid their debt to society have resulted in additional punishments, including legal
restrictions on their political and economic opportunities and informal restric-
tions on their social a~ceptance."' ~ But because fines for restitution would
"restore" the victim, incentives for further revenge are significantly reduced.
Fines would be the primary type of punishment in a system of privately enforced
customary law, but they might not be the only type of punishment. Pre-thirteenth
century Icelandicz7 and primitive KapaukuZ8 systems of law considered capital
punishment appropriate for some crimes, for instance. Whether such punishment
would arise in the customary law system of a modem society is difficult to predict.
It is possible that the life of a perpetrator of a capital offense would be committed
to working where the payments for such labor go to the victim or the victim's
family, even though full restitution could never be achieved.
One individual property right that the law would recognize, as explained above,
is the right to restitution when one's rights are violated. As with any private
property right, the right to restitution would be transferable, which has been the
case in virtually all the systems of privately produced law that have e~i st ed. ~9
A marketable claim by a victim implies that it can be sold to someone willing
to pursue and prosecute the alleged offender.)O This, in turn, could produce
arrangements under which violators of the rights of the poor and the weak would
be pursued and prosecuted. Private enforcement arrangements can be anticipated
that would serve the poor, the wealthy, and those in between.
Private Law Enforcement Mechanisms
A wide variety of individual and cooperative arrangements can be anticipated
that would emphasize the protection of persons and property (prevention) and
the recovery of losses suffered by victims. Individuals may choose to protect
themselves and their property by owning guns, installing burglar a l ms , building
fences, barring windows, and so on, much as they do today. The rights to do
such things are private property rights that clearly would be supported by privately
enforced customary law.
Cooperative arrangements by groups would also arise. The benefits to be shared
by watching and patrolling geographic areas are considerable, and thus incen-
tives are strong to support such efforts. In some communities or neighborhoods
where individuals budget constraints are more binding than time constraints,
residents would contribute their time to a voluntary patrol. In others, where budget
constraints are less binding, people would contribute money to hire a private
31 19% BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS
security firm or firms, which in turn would furnish patrols, watchmen, guards,
electronic watching devices or whatever the community wished to pay for.
Although there may be free-rider incentives inherent in such localized
watching,)' over time contractual arrangements would probably arise to inter-
nalize the deterrent benefits of patrol systems, thus eliminating the free-rider
problem. This development might not actually take long in a highly mobile society
like ours. Enterprising residential and business real estate developers would quickly
see the benefit of establishing developments that offer, as part of the purchase
price of a home or business location, a guarantee that everyone in the develop-
ment has signed a legally biding contract to contribute to the community's security
arrangements. Such communities already exist, of course. In some areas a person
who buys property has to agree to pay a fee that covers the cost of the private
guard and patrols (as well as street maintenance, street lighting, etc., if the entire
community is privatized). As people move, for whatever reason, these sorts of
contractual arrangements would attract increasing numbers, since such com-
munities would be relatively safe from violations of individual property rights.
This is particularly true since those least likely to free ride because of their strong
concern for protection would find such contractual arrangements quite attractive,
leaving relatively large numbers of free riders in other, non-contracting
neighborhoods.
Voluntary arrangements without legally binding contracts (that is, those that
allow free riding) would become relatively less effective, and neighborhoods so
characterized would face relatively greater threats to persons and property. As
the threat increased more people would move out, or the cost of free riding would
increase to a level such that more and more of those who remain would be will-
ing to contract for joint purchase or production of protection. Free riders would
face the increasing ire of their neighbors, ultimately backed by ostracism, and
be prevented from consuming any benefits of living in the area that they can be
excluded from. Communities that fail to internalize the benefits of group protec-
tion because of free riders would find themselves at a competitive disadvantage
with those that eliminate free riding. Property values would fall. The cost of free
riding would rise tremendously under privatization. None of this means that all
free riding must be eliminated as every individual (or even every community)
contracts to internalize the deterrent benefits of protection, of course. Communities
may conceivably exist and survive without developing such security systems,
although their "citizens" would probably have either very high levels of self-
protection or have little they feel is worth protecting. (There clearly are people
who have opted out of the current legal and social system roaming the streets
of most major cities and many of the nation's wildernesses).
Individual security firms may simply offer protection services like patrols and
guards, but they may also be vertically organized to offer recovery of losses (or
restitution) as well. Some advocates of private law enforcement have theorized
32 THE JOURNAL OF LlBERTARlAN STUDIES Fall
that the private security market would be organized much like a mutual insurance
market. A firm or a cooperative surety (or pledge) group organization would insure
individuals and their property against violation~.~"is firm or organization would
therefore have strong incentives to prevent offenses by supplying police services
with an emphasis on patrolling, watching, and other deterrents. If an offense occurs
against a subscriber to these services, the insurance would pay the subscriber's
claim unless they recover all losses. In paying the subscriber, the firm or organiza-
tion, in effect, would purchase the right to collect at least some portion of the
fine from the offender. Strong incentives would therefore exist to pursue the
offender and to gather evidence for court prosecution."
Of course, such insurance arrangements with vertically organized firms pro-
viding both protection and investigative services may not arise in every (or even
any) case. Individuals may buy protection from one company, and in the event
of an offense, contract with another to pursue the offender or offer a reward to
attract the attention of a number of specialized thief-taking firms. Market forces
of demand (reflecting the preferences of consumers) and supply (reflecting pro-
duction technologies and costs) would dictate the actual industrial organization
that evolves.
Numerous other contractual arrangements can be anticipated under a system
of private enforcement of law. For one thing, the contract with a particular pro-
tection firm may include an arbitration clause so that disputes between clients
of that firm would be settled internally. The company may provide an arbitrator
or arbitrators or contract with a particular dispute resolution firm. (The market
for adjudication is examined in more detail below, following further considera-
tion of enforcement.) An arbitration clause in a legal contract also would mean
that refusal to submit to arbitration is unlikely since it would probably result in
ostracism by the rest of the members of the community, loss of protection ser-
vices, and perhaps of ownership rights to property purchased under the contract
(e.g., a residence or business location).
Similar contractual arrangements would probably arise betweer1 different com-
munities and their (perhaps different) protection agencies. And even if a formal
contract did not exist, the desire to avoid violence would lead to submission to
arbitration in most instances. Such arrangements might be likened to formal or
informal extradition treaties among political entities. Consider first an offense
(or alleged offense) by a member of one group against a member of a different
law enforcement organization (firms, communities, etc.) where both law systems
hold the act to be illegal. The organization whose member is alleged to be the
offender would have strong incentives to allow their member to be arrested and
to apply considerable pressure on that individual to submit to arbitration. Sneed
noted that a protection organization (or firm) that refused to allow the arrest of
a member (or client), given good cause, would suffer in several ways: (1) other
organizations would similarly resist attempts to arrest their clients, and thus the
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS 33
organization's ability to protect its members would be reduced and the chances
of violent confrontations would rise; either violent confrontations or reciprocal
impotence would cause loss of membership (or clients); (2) reciprocal working
relationships for the pursuit and capture of geographically mobile offenders
(cooperative information and apprehension networks, or an inter-group bounty
system) would be very valuable, and without doubt, they would develop, but
refusal to cooperate in other areas would jeopardize the chance to participate in
such arrangements; and (3) an organization that refused to turn over members
who committed offenses would tend to attract members who intended to commit
offenses, thus placing the organization in jeopardy because of ever-increasing
confrontation^.^^ These incentives apply whether the member to be arrested is
guilty or innocent.35 Thus every policing organization would probably explicitly
state that disputes between members of different organizations must be decided
by impartial private courts or arbitrators.
That arrangements such as those envisioned by the Sneed argument, whether
formal or informal, would arise is supported by historical evidence. For example,
the extended families of the primitive Ifugao applied pressure to their members
to yield to mediation procedures when a dispute arose with a member of another
family.36Formal procedures existed for resolution of disputes between members
of different congregations in medieval Iceland3' and various tuatha in Ireland
prior to subjugation by the Br i t i ~h. ) ~ Jurisdictional mles were well defined among
the primitive KapaukuS9 and the Anglo-Saxons before the Norman conquest.40
Medieval mercantile law was customary law enforced by the merchants
themselves, and it was applied evenhandedly to foreign merchants and domestic
merchants alike.4'
Sneed also suggested that bail bonds might be posted by an accused offender's
protection company or organi~ation,'~ and this too has historical precedent. Under
the surety system in medieval Ireland, a large fine levied against a member of
a particular ruath might be paid by the group as a whole, and they in turn could
collect from the offender.43 Similarly, Icelandic society prior to the fourteenth
century "provided their members with money to pay large fines."44 The Anglo-
Saxon tithing system that existed before the Normans imposed their will on
England also included effective credit and bonding.4s Such bonding or credit
arrangements have some very significant advantages. First, the victim's enforce-
ment organization would require a bail sufficient to compensate the victim or
his heirs, and cover the organization's cost associated with the case. Consequently,
the victim and his organization would be relatively unconcerned if the accused
fails to appear. In fact, it would be the accused's own defense organization who
would be responsible for collecting from him if he is guilty. Ostracism must play
a predominant role in inducing someone (particularly someone who is guilty) to
submit to arbitration. This bail bonding arrangement makes ostracism possible.
If the members of an accused offender's own community or other mutual defense
34 THE JOURNAL OF LIBERTARIAN STUDIES Fall
group have strong incentives to apply pressure on the accused to submit, then
ostracism can be effective. Furthermore, in contracting with a particular organiza-
tion or firm for the option of bail, should it be required in the future, the individual
may voluntarily agree to submit to confinement or yield a portion of his future
income to repay the bond, should he be found guilty. At any rate, the onus would
be on the members of the accused's organization to collect if he is guilty, rather
than on the victim.
A second desirable characteristic of the bail (or credit) arrangement as part
of a contract with a particular protection firm or organization is that organiza-
tions would have incentives to work on behalf of the accused in an effort to recover
the bond. (Recall also that those who are acquitted of a violation would have the
right to restitution of costs, including the cost of any investigation on his behalf.)
Thus someone accused of an offense would "regularly have investigative agen-
cies working on his behalf which wield powers of the same order as those of
the arresting company. Deliberate as well as accidental conviction of the inno-
cent would be far less feasible. Falsification of evidence would be considerably
more risky."46
The preceding discussion of reciprocal arrangements between different com-
munities and different law enforcement organizations assumed that the violated
law was common to both communities and their enforcement organizations,
although, as observed earlier, some differences in law could arise across com-
munities or groups. How might the private sector handle a member of one legal
organization who, while traveling in some distant community, violates a law unique
to that legal organization? Several possible arrangements can be conceived. For
instance, a risk-averse individual who expects to be in situations where he may
inadvertently violate an unknown law could insure himself against that possibility.
Thus his protection company would pay his fine (or bail) and he would not suffer
any exorbitant personal loss. Under this scenario, the relevant law is that of the
group being violated rather than that of the violator.
A particular community's law could involve a fine that most people outside
that group considered unreasonable, or the law itself may he commonly held to
be unreasonable. However, if such a law is violated by someone from another
community, both groups still would have strong incentives to avoid a violent con-
frontation. Imposition of laws on outsiders that are way out of line with those
that exist in most communities clearly increases the chances of violence, and thus
a negotiated or arbitrated settlement would, in most cases, lower the cost to the
accused and his insurers below that which would induce violence. A community
that insists on strictly imposing its own morality and heavy penalties on outsiders
would initially face continual clashes, followed by boycott sanctions as residents
of other communities refuse to travel to or trade with them, or to enter into
reciprocal arrangements to yield accused violators of their laws. A community
that isolates itself would not survive in a competitive, free-market environment.
1990 BRUCE L. BENSON--CUSTOMARY LAW WITH PRIVATE MEANS 35
Those who weakly adhere to the norms the community wishes to impose would
leave first, and as property values and trade-generated incomes declined, others
would follow. In fact, then, if a community wishes to impose laws differing
substantially from the norm, they would have strong incentives to inform out-
siders of the differences in order to avoid conflict and minimize the difficulty
of maintaining non-standard laws. Part of the reciprocal agreements with other
communities and enforcers for extradition, etc., may be explicit recognition of
differences in laws and procedures for treating conflicts that arise under the dif-
ferent laws.
Undoubtedly some individuals would not join any cooperative law enforcement
arrangement and refuse to recognize any rules of law. After all, there are thousands
of such people today. The incentives to cooperation and contract would be con-
siderably stronger under a system of customary law and private enforcement than
under public law and law enforcement (and, under a system dominated by private
property, all those millions of acres of publicly owned land would not be available
for such people to free ride on), but a relevant question remains: How would
these people he treated under privatization? First, they would be left alone unless
they violate someone else's rights. Second, they would have to defend their person
and property on their own, given their refusal to cooperate. But what would happen
if they violated a law by infringing on someone else's rights? No form of ostracism
or boycon sanction would be effective in inducing them to submit to arbitration
or to pay whatever fine is levied, should they be found guilty. Actually, the same
question applies to anyone who refuses to submit to the pressures of ostracism
and pay a fine (or perhaps, to go to arbitration).
The ultimate threat that underlies any system of property rights is that of
violence. If someone refuses to yield to arbitration andlor accept the judgment
of the courts, the system (any system, including government) moves to violence."
An individual who commits a major offense against someone else and then further
refuses to yield to the legal justice system would be an outlaw. In primitive legal
systems (as well as others that have not drawn their authority from a central state
government), anyone was free to take an outlaw's life and property.48 Such a
con1 igency would probably arise in a modern system of privatized law and order
as well.
Private Courts
It was suggested above that contractual arrangements for arbitration would
probably arise within and between the groups and communities that organize for
joint security. Furthermore, these various communities and agencies would have
very strong incentives to seek out judges for both inter- and intra-community
dispute resolutions who not only have reputations for impartiality, but for issuing
clear, easily interpretable opinions available as a guide in settling future disputes-
36 THE JOURNAL OF LIBERTARIAN STUDIES Fall
that is, precedents. Judges who provide such opinions would garner much more
business (if not all the business) than judges who issue vague, uninterpretable,
or secret opinions. Why? Simply because disputes are costly and always raise
the specter of potential violence. Both would be avoided if at all possible by private
sector law enforcers. Note that the concern for a security agency or community
representing some victim would be much stronger in this regard than the concern
of individual disputants in our current system, since these firms or communities
represent many potential victims and offenders, and therefore many possible future
onfrontations.
There is a second reason, beyond minimizing the cost of future disputes, for
demanding clear, well-founded decisions. Smith referred to it as the "verifica-
tion aspect."49 In order for a dispute to end satisfactorily, a decision has to be
acceptable-verifiable-not just to the parties most directly affected, but to the
groups or firms representing these parties and to groups who, although not directly
involved, might be drawn into a confrontation with one of the groups in the dispute
under consideration. The willingness of various other firms and organizations
to enter into and honor reciprocal arrangements, such as extradition contracts,
with those involved in the dispute would depend, in part, on the way this and
other disputes are handled.
These contractual arrangements between dispersed organizations to encourage
arbitration of disputes between their members also would increase the likelihood
of standardization of certain aspects of law. In effect, law would develop through
dispute resolution to facilitate the interaction between groups-law based on
common custom as reflected in previous judgments. Aspects of a particular group's
law that prove to be efficient would be revealed to another group in the process,
and they could adopt it in turn, if they wished. Such a process characterized the
standardization of the Law Merchant throughout Western Europe during the
eleventh and twelfth centuries, for example.50 Efficient rules adopted by one mer-
chant community tended to spread to other communities quite rapidly.
Critics of private adjudication systems are sometimes fearful that two desirable
institutional arrangements of modem public courts might disappear in a private
system. First, would there be trial by jury? Ifjury trials are demanded they would
be supplied, assuming that the demand is sufficiently strong to pay the full cost
of such a trial. Of course, our current system rarely comes close to reimbursing
jury members for their time and effort. Jury trials would be relatively more
expensive thanjudge-only trials, and consequently, they are relatively less likely
under privatization. This is not necessarily bad, however. As Person noted, jury
trials ". . . are of great importance in the government courts as a means of pro-
tection from a hostile judge but of less importance when parties select their own
judges."5' Indeed, juries were developed by Norman kings for inquisitional pur-
poses and were ultimately accepted as a desirable institution because they served
as a counter force to another royal institution-the judges of the king's courts.'*
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS 37
As a consequence, the demand for jury trials is likely to be considerably weaker
in a privatized system, and when this is combined with their relatively high cost
they become relatively unlikely.
The second institutional question that often arises is, would there be courts of
appeal? Again the answer is, if they are demanded. There would not be a single
monopolized "supreme court," of course, but there might be competitive appeals
courts just as there would be competitive judges for the initial consideration of
a dispute. Naturally, the next question is, given the existence of appeals courts
but no supreme court of last resort, what will prevent a continuous, never-ending
process of appeals so that an offender avoids submitting to a decision but is not
declared an outlaw. The contractual arraneements for di s~ut e settlement within
-
a particular community or security organization would, in all likelihood, specify
an appeals procedure and put a limit on the number of appeals (the medieval Law
~e r c h a n t &wed no appeals, for instance, because the costs in terms of delay
and disruptions of commerce were considered to be too highs3). Since formal
and informal contracts would arise between groups to establish procedures for
intergroup dispute resolution, appeals procedures may be established for those
disputes as well. Alternatively, as part of the agreement to submit to arbitration
when prior arrangements do not exist, the parties may specify an appeals pro-
cedure and cutoff point.
Ostracism, Boycott Sanctions, Private Prisons,
and the Collection of Fines
Why would someone pay a fine or pay off any debt if the coercive power of
the state did not exist to force payment? The answer is basically the same as for
the question of why someone, particularly someone guilty of an offense, would
submit to arbitration in the first place-ostracism and boycott sanctions would
convince many to pay their debts. The potential effectiveness of ostracism and
boycott threats is enhanced under the contractual arrangements predicted above.
If indeed part of the insurance arrangement is the provision of credit to pay bails
or large fines, then the responsibility of collecting from the offender is shifted
from the victim to the offender's own security organization. Ostracism by one's
own community can be an extremely effective method of inducing payment of
debt. Outlawry would be the most severe form of ostracism, but less severe threats
would often be sufficient to induce compliance.
Although ostracism has been effective through history as a means of inducing
compliance with private court judgment^,^' some might argue that it would not
be effective in our modern mobile society. On the contrary, ostracism is likely
to be even more effective today than it was in the historical situations alluded
to here: "Nowadays, modern technology, computers, and credit ratings would
make such . . . ostracism even more effective than it has ever been in the pa~t. "~5
38 THE JOURNAL OF LIBERTARIAN STUDIES Fall
This does not mean that some guilty offenders would not flee and attempt to hide,
just as many criminals do under our governmental system of justice. It simply
means that, given the communications technology now available, the network
of cooperative, reciprocal contracts between various communities and their justice
agencies would probably prevent such an individual from obtaining the benefits
ofjoining some other community, or at least severely limit the likelihood of such
an occurrence. The Anglo-Saxon tithing arrangement excluded anyone from enter-
ing or dealing within a community who could not demonstrate that he was a
member in good standing of some surety With modem communications
technology, checking any stranger's claims of insurance would be much easier
than it was then.
A more relevant concern is that offenders may be unable to meet their obliga-
tions. If an offender cannot be appropriately fined, would such a system break
down? That was not the case historically. For example, Friedman, in his examina-
tion of medieval Icelandic justice, suggested that a variation on the Icelandic debt-
thralldom would solve the problem of judgement-proof offenders. In particular,
he proposed that "an arrangement which protects the convicted criminal against
the most obvious abuses would be for the . . . criminal . . . [to] have the choice
of . . . accepting bids for his services. The employer making such a bid would
offer the criminal some specified working conditions (possibly inside a private
prison, possibly not) and a specified rate at which the employer would pay off
the fine. In order to get custody of the criminal, the employer would have to
obtain his consent and post bond with the court for the amount of the fine.""
The offender would face a choice between ostracism or voluntarily working off
the fine. Contracts between the debtor and the victim, or more likely the debtor's
insurers, would specify the work conditions. If the insurers perceive little risk
that a debtor will renege, they might simply allow him to continue in his trade
and make periodic payments. If the risk of reneging is perceived to be large,
varying degrees of security and supervision may be provided for in the contract.
For example, the debtor may agree to report to a supervisor once a week or once
a month (e.g., as parolees report to parole officers) or to return to and remain
in a secure facility each evening (e.g., as in work-release programs that are
sometimes available today).
If the risk of reneging is large enough, however, a "penal specialist" would
be employed. The protection agency-insurance company may have its own
specialized penal subsidiary, of course, or separate firms may specialize in pro-
viding such services. Sneed predicted that a competitive penal system would arise
wherein several firms would bid for employment of the convict under secure con-
diti0ns.~8 Furthermore, the insurance companylconvict would have the right to
withdraw from the resulting contract if the prison firm did not live up to its agree-
ment, a right that would guarantee that the convict would make the highest pos-
sible wage (e.g., be paid his marginal product) so he could earn his way out of
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRlVATE MEANS 39
prison as quickly as possible. Whether exactly these sorts of contractual arrange-
ment arise or not, it is clear that the private penal system would differ from
current public prisons.
One important difference between prisons under a fully privatized system and
current government prisons is that those who run private penal firms would have
strong incentives to treat prisoners well. Such incentives are enhanced by an
arrangement that ensures prisoner mobility, as Sneed emphasized, but they exist
even without a high degree of mobility. After all, a person's productivity, and
therefore the rate of debt repayment, under such a system is likely to be signifi-
cantly influenced by his treatment. Since the penal firm would either contract
with the debtor to assume the risk of debt payment or contract with insurers (or
perhaps victims) who want the debt paid off as quickly as possible, a firm that
has a reputation for mistreating prisoners in such a way as to reduce their pro-
ductivity would clearly not receive much business. Along these same lines,
increased effort by a prisoner would reduce the period of confinement, so the
length of the term would be at least partly self-determined. Prisoner morale would
improve, making eventual rehabilitation easier.
There actually are a number of reasons for expecting that rehabilitation would
be far more effective under such a system than it is with current efforts, beyond
the more humane treatment of prisoners and their relatively better morale.J9 Pro-
ductive use of inmate time would provide them with incentives to develop new
or strengthen existing marketable skills, and teach them the discipline needed to
hold a job in the market place after their release.60
Under the current system, prisoners are idle; they are bored. This idleness and
boredom reflects a lack of constructive outlets, and therefore encourages other
outlets. In particular, violence and drug abuse are both significant problems in
modem prisons. Neither are as likely in a privatized system. Drugs may reduce
productivity and delay release, for example, and the risk of injury from a violent
confrontation that significantly delays release, would provide a substantial deter-
rent to violence.
In Sneed's words, "our analog to prison would not be, as today, a brutal
institution primarily functioning to teach brutes how to be more brutish, but would
become almost a treatment center, a place to learn how to live peaceably in out-
side society. Our present system only teaches a person how to live in prison."61
This is an important consideration for those who question the effectiveness of
ostracism and boycott sanctions as sufficient inducements for offenders to submit
to arbitration judgments, which may imply working under the supervision of a
private penitentiary until the debt is paid off. The "prison" experience under
privatization would not be at all comparable to the situation a convict faces in
our "modern," governmentally produced prisons. The incentives to avoid such
"punishment" would, therefore, be considerably weaker than under the current
system.
40 THE JOURNAL OF LIBERTARIAN STUDIES Fall
Conclusions
The argument outlined above is that a system that emphasizes individual respon-
sibility and liberty can be established under customary law with private sector
institutions for enforcement and adjudication. Such a system may not be perfect-
e.g., some free riding may occur.6Z Thus some may suggest that limited govern-
ment involvement, where government does those few things that it might do better
than markets, would be superior to complete privatization. Friedman answered
this question in the following way:
Perhaps it would be-if the government stayed that way. . . . One cannot
simply build any imaginable characteristics into a government; governments
have their own internal dynamic. And the internal dynamic of limited govern-
ments is somethine with which we. to our sormw. have a
-
mod deal of oractical
-
experience . . . the logic of limited government is to grow. There are obvious
reasons for that in the nature of government, and plenty of evidence. Con-
stitutions provide, at the most, a modest and temporary restraint. As Murray
Rothbard is supposed to have said, the idea of a limited government that stays
limited is truly Ut ~pi an. ~'
Every aspect of government involvement in law and order started out to be very
limited (or nonexistent). Royal courts in England, for example, initially had very
limited juri~dictions.~' Then they began competing with other courts in adjudicating
increasingly more diverse laws. They had a "competitive" advantage in that part
of the cost of using them was not born by litigants. Various interest groups were
happy to shift their costs for protection services and the enforcement of their laws
onto others by using government courts, and later government watchmen, police,
prosecutors, and so on. Government entities were happy to oblige. The combina-
tion of power seeking and bureaucratic growth by government officials and transfer
(or rent) seeking by interest groups inevitably turns limited government into big
government.
NOTES
University Press, 1972).
3. See, for example, Bmce L. Benson "The Sponlaneous Evolution of Commercial Law," Southern
EconomicJouml 55 (lanuam 1989): 64-661: Benson. "Enforcement of Private Promnv Rights
in Primitive Societies: ~a w~i t h o * t ~ovemment;' ~ournnlof Libenarias ~ t n d i i 9 ?winter
1989): 1-26; Benson, The Enterprise ofLaw: Justice Without the State (San Francisco: Pacific
Research Institute, forthcoming); or Lon L. Fuller, Re Moroliry ofLaw (New Haven: Yale
University Press, 1964).
4. Fuller, ibid., 23-24.
5. Benson, "Enforcement of Private Propeny Rights in Primitive Societies"; and Benson, "Legal
Evolution in Primitive Societies." Joumnl of Institutional ond Theoretical Economics 144
(December 1988): 772-788
1990 BRUCE L. BENSON-CUSTOMARY LAW WITH PRIVATE MEANS 41
6. David Friedman, "Private Creation and Enforcement of Law: A Historical Example," Journal
of-1 Studies 8 (March 1979): 399-415; Joseph R. Peden, "Property Rights in Celtic Irish
Law," Journal ofLibenarian Studies 1 (1977): 82-94, and Benson, 7hEEnterp"x o f l a w.
7. Benjamin R. Tucker, Instead of a Bwk (New York: Benj. R. Tucker, Publisher, 1893). 59.
8. F. A. Hayek, Law, Lpgirlntion and Ubeny, Val. 1 (Chicago: University of Chicago Press, 1973).
55.
9. Fuller, The Moroligv of Lnw, 128-129.
10. Benson, "Enforcement of Private Property Rights in Primitive Societies"; Benson, "The Spon-
taneous Evolution of Commercial Law"; and LeanE. Trakman, 7he Lnw Merchant: 7he Ewlu-
tion of Commercial Law (Liltletan, Col.: Fred B. Rothman & Co., 1983).
I I. Benson, "Enforcement of Private Propetty Rights in Primitive Societies."
12. See Hayek, Law, Lpgislmion and Libeny, Vol. 1; Fuller, 7hMml i ry of l aw; Fuller, 7he Prin-
ciples of Social Order, Durham, N.C.: Duke University Press, 1981.
13. Fuller. 7he Princioles of Social Order. o. 213.
16. For discussions of various aspects of government law enforcement as common poh resources,
see Benson, "Camption in Law Enforcement: One Consequence of 'The Tragedy of the
Commons' Arising With Public Allocation Pmesses," 1EntemmMorul Review ofLaw and E m m ' c s
8 (June 1988): 73-W, Benson, lhe Enterprise oflmu;Bason andWollan, Laurin A , Jr., "Prison
Crowding and Judicial Incentives," Madison Paper Series, No. 3 (May 1989): 1-21; and Richard
Neely, Wy Couns Don't Work (New York: McGraw-Hill, 1982).
17. Friedman, 7he Machinery ofFreedom: Guide to o Radical Capitalism (New York: Harper and
Row, 1973). 173-174.
18. Benson, "TheSponmmus Evolution of Commercial Law"; and Benson, 7heEmerprireofLaw.
19. Ibid.
20. Friedman, "Private Creation and Enforcement of Law: A Historical Case," 414; also see Randy
E. Bamen, "Restitution: A New Paradigm of Criminal Justice," Ethics 87 (July l977), 293.
21. For example, see Benson, "The Spontaneous Evolution of Commercial Law"; Bensan,
"Enforcement of Private Property Rights in Primitive Societies"; Friedman, "Private Creation
and Enforcement of Law: A Historical Case"; and Peden, "Property Rights in Celtic Irish Law."
22. See for example, Friedman, "Private Creation and Enforcement of Law: A Historical Case,"
408; and Barnett. "Restimtion: A New Paradigm of Criminal Justice," 291.
23. See Gary Becker, "Crime and Punishment: An Economic Apprnach," Journal ofPoliticol
Economy 76 (MarchiApril 1968): 191-193; and George 1.Stigler, "The Optimum Enforcement
of Laws," Journal ofPoliticnl Economy 78 (Mayllune 1970): 531.
24. For other possibilities see Barnett, "Restitutions: A New Paradigm of Criminal Justice," 288.
25. Friedman, "Private Creation and Enforcement of Law: A Historical Case," 409.
26. Becker, "Crime and Punishment: An Economic Approach," 194.
27. Friedman, "Private Creation and Enforcement of Law: A Historical Case."
28. Benxm, "Enforcement of Private Properly Rights In Primitive Societies."
29. Benson, 7he Enterprise @Law; and Friedman, "Private Creation and Enforcement of Law: A
Histnricd Case
.
"
....... . .-. --..
30. Friedman, Ibid., 414.
3 1. In this regard, see Benson, 7he Enterprise o f h w , where the potential for the free-rider problem
is shown to be quite small relative to the externality problems associated with public sector law
~.
enforcement.
32. See,for instance, Friedman, 7he Machinery ofFreedom: Guide to n Radical Capitalism; Mur-
rav Rothbard. For a New Li bem (New Yark: Macmillan. 1973). 222-228: and Clarence L. - ~~ ~~
Swarlz, What is Mutuolism? ( ~ e w ~ o r k : Vanguard press; 1927); 155-1661
33. Rothbard, Ibid., p. 222.
34. Sneed, I. "Order Without Law: Where Will Anarchists Keep the Madmen?" Journal of f i ber-
torian Studies 1 (1977): 119.
35. Ibid.
42 THE JOURNAL OF LIBERTARIAN STUDIES Fall
36. Benwn. "Tne LN Vr1.m and Other Fanlure, uf thc Puhhc Ldu Expcrlmen~." I 10~or . ilour-
nol t ' f l d~md Phl w Pol10.9 (Sprmg 1986, 399.427, and Renx,n. "Eniorcemcnt ctf Prnate
Property Rights in Primitive Smieties."
37. Friedman, ''Private Creation and Enforcement of Law: A Historical Case."
38. Peden, "Property Rights in Celtic lrish Law."
39. Benson, "Enforcement of Private Property Rights in Primitive Societies."
40. Benson, The Enterprise of Law.
4 1. Benson, "The Spontaneous Evolution ofCommercial Law"; and Trakman, The Law Merchant:
7he Evolution ofCommercio1 Law.
42. Sneed, "Order Without Law: Where Will Anarchists Keep the Madmen?", 119.
43. Peden, "Property Rights in Celtic lrish Law."
44. Friedman, "Private Creation and Enforcement of Law: A Historical Case," 400.
45. Benson, 7he Enterprise of Law.
46. Sneed, "Order Without Law: Where Will Anarchists Keep the Madmen?", 120.
47. Benson, "Enforcement of Private Property Rights in Primitive Societies"; Benson, The Enter-
prise of Law; and John Umbeck. A Theov of Pr opeq Rights With Applications to the Cali-
fornia Gold Rush (Ames: Iowa State University Press, 1981).
48. See for example, Benson, Ibid.; Peden, "Property Rights in Celtic lrish Law"; and Friedman,
"Private Creation and Enforcement of Law: A Hiswrical Case."
49. George Smith. "Justice Entrepreneurship in a Free Market," Joumnl of libenmian S ~ d i e s3
(Winter 1979): 422424.
50. Bensan, "The Spontaneous Evolution of Commercid Law"; and Trakman, TheLaw Merchant:
The Evolution of Commercial Law.
51. Carl Person. "Justice, Lnc.," Juris Doctor (March 1978): 34.
52. Benson, The Enterprise ofLaw.
53. Benson, "The Spontaneous Evolutionof Commercial Law": and Trakman, TheLaw Merchnnt:
The Evolution of Commercial Law.
54. See for example, Benson, Ibid.; Benson, "Enforcement of Private Property Rights in Primitive
Societies"; Benson, The Enterprise of l ow; Peden, "Property Rights in Celtic lrish Law"; and
Friedman, "Private Creation and Enforcement of Law: A Historical Case."
55. Rothbard, For o New Libmy. 23 1.
56. Bensan, The Enterprise of l ow.
57. Friedman, "Private Creation and Enforcement of Law: A Historical Case," 415.
58. Sneed, "Order Without Law: Where Will the Anarchists Keep the Madmen?", 122-123.
59. See Barnett, "Restitution: A New Paradigm of Criminal lustice," 293, for discussion of
ohvsioloeical factors not discussed below.
It would be foolish to in effect fire a worker with experience simply because he
has now regained his freedom. He will still remain employed by the penal agency
but will become freeof seeuriw restrictions and will be an ordinm worker. Indeed. ~ ~ ~ ~
an agency which does provide employment for "graduated" convicts would have
a strong competitive edge in the recruitment process.
cannot support themselves in legal activities.
61. Ibid., 123.
62. Benson, 7he Enterprise of Law.
63. Friedman, The Machinery of Freedom: Guide to o Radical Capilalism, 200-201
64. Bensan, 7he Enrerprise of l ow.
But Wouldn't Warlords Take Over?
Mises Daily: Thursday, July 07, 2005 by Robert P. Murphy (http://mises.org/daily/author/380/Robert-P-Murphy
Tweet Tweet 47 36 100
On two separate occasions in the last couple of weeks, people
have asked me a familiar question: In a system of anarcho-
capitalism or the free-market order, wouldnt society
degenerate into constant battles between private warlords?
Unfortunately I didnt give adequate answers at the times, but I
hope in this article to prove the adage that later is better than
never.
APPLES AND ORANGES
When dealing with the warlord objection, we need to keep our comparisons fair. It wont do to
compare society A, which is filled with evil, ignorant savages who live under anarchy, with society
B, which is populated by enlightened, law-abiding citizens who live under limited government. The
anarchist doesnt deny that life might be better in society B. What the anarchist does claim is that,
for any given population, the imposition of a coercive government will make things worse. The
absence of a State is a necessary, but not sufficient, condition to achieve the free society.
To put the matter differently: It is not enough to demonstrate that a state of private-property
anarchy could degenerate into ceaseless war, where no single group is strong enough to subjugate
all challengers, and hence no one can establish order. After all, communities living under a State
degenerate into civil war all the time. We should remember that the frequently cited cases of
Colombia and now Iraq are not demonstrations of anarchy-turned-into-chaos, but rather examples of
government-turned-into-chaos.
For the warlord objection to work, the statist would need to argue that a given community would
remain lawful under a government, but that the same community would break down into continuous
warfare if all legal and military services were privatized. The popular case of Somalia, therefore,
helps neither side.[i] It is true that Rothbardians should be somewhat disturbed that the respect for
non-aggression is apparently too rare in Somalia to foster the spontaneous emergence of a totally
free market community. But by the same token, the respect for the law was also too weak to
allow the original Somali government to maintain order. (http://en.wikipedia.org
/wiki/History_of_Somalia#Somali_Civil_War)
Now that weve focused the issue, I think there are strong reasons to suppose that civil war would
Recommend Send Jay Hailey, Jefrey Jones and 882 others recommend this.
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be much less likely in a region dominated by private defense and judicial agencies, rather than by a
monopoly State. Private agencies own the assets at their disposal, whereas politicians (especially in
democracies) merely exercise temporary control over the States military equipment. Bill Clinton
was perfectly willing to fire off dozens of cruise missiles when the Lewinsky scandal was picking up
steam (http://news.telegraph.co.uk/htmlContent.jhtml?html=/archive/1998/08/21/wemb21.html) . Now regardless of ones
beliefs about Clintons motivations, clearly Slick Willie would have been less likely to launch such an
attack if he had been the CEO of a private defense agency that could have sold the missiles on the
open market for $569,000 each (http://www.chinfo.navy.mil/navpalib/factfile/missiles/wep-toma.html) .[ii]
We can see this principle in the case of the United States. In the 1860s, would large scale combat
have broken out on anywhere near the same scale if, instead of the two factions controlling
hundreds of thousands of conscripts, all military commanders had to hire voluntary mercenaries and
pay them a market wage for their services?
CONTRACT THEORY OF GOVERNMENT
I can imagine a reader generally endorsing the above analysis, yet still resisting my conclusion. He
or she might say something like this: In a state of nature, people initially have different views of
justice. Under market anarchy, different consumers would patronize dozens of defense agencies,
each of which attempts to use its forces to implement incompatible codes of law. Now its true
that these professional gangs might generally avoid conflict out of prudence, but the equilibrium
would still be precarious.
To avoid this outcome, my critic could elaborate, citizens put aside their petty differences and
agree to support a single, monopoly agency, which then has the power to crush all challengers to its
authority. This admittedly raises the new problem of controlling the Leviathan, but at least it
solves the problem of ceaseless domestic warfare.
There are several problems with this possible approach. First, it assumes that the danger of private
warlords is worse than the threat posed by a tyrannical central government. Second, there is the
inconvenient fact that no such voluntary formation of a State ever occurred. Even those citizens
who, say, supported the ratification of the U.S. Constitution were never given the option of living in
market anarchy; instead they had to choose between government under the Articles of
Confederation or government under the Constitution.
But for our purposes, the most interesting problem with this objection is that, were it an accurate
description, it would be unnecessary for such a people to form a government. If, by hypothesis, the
vast majority of peoplealthough they have different conceptions of justicecan all agree that it is
wrong to use violence to settle their honest disputes, then market forces would lead to peace
among the private police agencies.
Yes, it is perfectly true that people have vastly different opinions concerning particular legal
issues. Some people favor capital punishment, some consider abortion to be murder, and there
But Wouldn't Warlords Take Over? - Robert P. Murphy - Mises ... http://mises.org/daily/1855
2 of 5 9/14/13 7:20 PM
would be no consensus on how many guilty people should go free to avoid the false conviction of
one innocent defendant. Nonetheless, if the contract theory of government is correct, the vast
majority of individuals can agree that they should settle these issues not through force, but rather
through an orderly procedure (such as is provided by periodic elections).
But if this does indeed describe a particular population, why would we expect such virtuous people,
as consumers, to patronize defense agencies that routinely used force against weak opponents? Why
wouldnt the vast bulk of reasonable customers patronize defense agencies that had interlocking
arbitration agreements, and submitted their legitimate disputes to reputable, disinterested
arbitrators? Why wouldnt the private, voluntary legal framework function as an orderly mechanism
to settle matters of public policy?
Again, the above description would not apply to every society in history. But by the same token,
such warlike people would also fail to maintain the rule of law in a limited State.
FREE RIDERS?
A sophisticated apologist for the Stateespecially one versed in mainstream economicsmight come
back with yet another justification: The reason a limited government is necessary is that we cant
trust the market to adequately fund legitimate police forces. It may be true that 95 percent of a
population would have similar enough views with respect to justice such that peace would obtain if
they all contributed substantially to defense agencies dedicated to enforcing their views.
However, the apologist could continue, if these police agencies have no right to extract
contributions from everyone who endorses their actions, then they will be able to field a much
smaller force. The market fails specifically because of the free rider problem: When a legitimate
firm cracks down on a rogue agency, all law abiding people benefit, but in a free market they would
not be obliged to pay for this public good. Consequently, rogue agencies, funded by malevolent
outlaws, will have a much wider scope of operation under anarchy.
Again, there are several possible replies to such a position. First, let us reflect that a large
standing army, ready to crush minority dissenters, is not an unambiguously desirable feature of
government.
Second, the alleged problem of free riders would not be nearly as disastrous as many economists
believe. For example, insurance companies would internalize the externalities to a large degree.
It may be true that an inefficient number of serial killers would be apprehended if the relevant
detective and police agencies had to solicit contributions from individual households. (Sure,
everyone gets a slight benefit from knowing a serial killer has been caught, but whether or not one
person contributes probably wont make the difference between capture or escape.)
Yet insurance companies that each held policies for thousands of people in a major city would be
willing to contribute hefty amounts to eliminate the menace of a serial killer. (After all, if he kills
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3 of 5 9/14/13 7:20 PM
again, one of these companies will have to pay out hundreds of thousands of dollars to the estate of
the victim.) The same reasoning demonstrates that the free market could adequately fund programs
to contain rogue agencies.
Third, people need to really picture the nightmare scenario to see how absurd it is. Imagine a
bustling city, such as New York, that is initially a free market paradise. Is it really plausible that
over time rival gangs would constantly grow, and eventually terrorize the general public?[iii]
Remember, these would be admittedly criminal organizations; unlike the city government of New
York, there would be no ideological support for these gangs.
We must consider that in such an environment, the law-abiding majority would have all sorts of
mechanisms at their disposal, beyond physical confrontation. Once private judges had ruled against
a particular rogue agency, the private banks could freeze its assets (up to the amount of fines levied
by the arbitrators). In addition, the private utility companies could shut down electricity and water
to the agencys headquarters, in accordance with standard provisions in their contracts.

(http://mises.org
/store/Myth-
of-National-
Defense-
The-P171C0.aspx)
The Myth of
National
Defense, 20%
off
(http://mises.org
/store/Myth-
of-National-
Defense-
The-P171C0.aspx)
Of course, it is theoretically possible that a rogue agency could overcome these obstacles, either
through intimidation or division of the spoils, and take over enough banks, power companies,
grocery stores, etc. that only full-scale military assault would conquer it. But the point is, from an
initial position of market anarchy, these would-be rulers would have to start from scratch. In
contrast, under even a limited government, the machinery of mass subjugation is ready and waiting
to be seized.
CONCLUSION
The standard objection that anarchy would lead to battling warlords is unfounded. In those
communities where such an outcome would occur, the addition of a State wouldnt help. Indeed,
the precise opposite is true: The voluntary arrangements of a private property society would be far
more conducive to peace and the rule of law, than the coercive setup of a parasitical monopoly
government.
But Wouldn't Warlords Take Over? - Robert P. Murphy - Mises ... http://mises.org/daily/1855
4 of 5 9/14/13 7:20 PM
Robert Murphy (mailto:robert_p_murphy@yahoo.com) is an adjunct scholar of the Mises Institute. He teaches
economics at Hillsdale College. See the Murphy Archive (http://mises.org/articles.aspx?author=Murphy) . Buy his book on the
stateless society (http://mises.org/store/Chaos-Theory-P190C0.aspx) . Discuss this article on the blog (http://mises.org/blog) .

[i] Having made this concession, I should point out that anarcho-capitalists can see their theories
borne out (http://en.wikipedia.org/wiki/History_of_Somalia#Recent_History) in Somalia to some extent.
[ii] Its true that this figure would be lower for a private defense firm, since it would control costs
much better than the Pentagon. Nonetheless it is still true that a private firm would husband its
stockpile of weapons better than State officials.
[iii] Let us also keep in mind that currently, mob groups (1) do not extract anywhere near as much
money, nor kill as many people, as any government in a typical days work, and (2) they derive their
current strength from government prohibitions (on gambling, drugs, prostitution, loan-sharking, etc.)
and hence are not representative at all of an anarchist world.
But Wouldn't Warlords Take Over? - Robert P. Murphy - Mises ... http://mises.org/daily/1855
5 of 5 9/14/13 7:20 PM
The Culture of Violence in
the American West
Myth versus Reality
F
THOMAS J. DILORENZO
The Not-So-Wild, Wild West
In a thorough review of the West was violent literature, Bruce Benson (1998)
discovered that many historians simply assume that violence was pervasiveeven
more so than in modern-day Americaand then theorize about its likely causes. In
addition, some authors assume that the West was very violent and then assert, as Joe
Franz does, that American violence today reflects our frontier heritage (Franz
1969, qtd. in Benson 1998, 98). Thus, an allegedly violent and stateless society of
the nineteenth century is blamed for at least some of the violence in the United States
today.
In a book-length survey of the West was violent literature, historian Roger
McGrath echoes Bensons skepticism about this theory when he writes that the
frontier-was-violent authors are not, for the most part, attempting to prove that the
frontier was violent. Rather, they assume that it was violent and then proffer explana-
tions for that alleged violence (1984, 270).
In contrast, an alternative literature based on actual history concludes that the
civil society of the American West in the nineteenth century was not very violent.
Eugene Hollon writes that the western frontier was a far more civilized, more
peaceful and safer place than American society today (1974, x). Terry Anderson and
Thomas J. DiLorenzo is a professor of economics at Loyola University Maryland.
The Independent Review, v. 15, n. 2, Fall 2010, ISSN 10861653, Copyright 2010, pp. 227239.
227
P. J. Hill affirm that although [t]he West . . . is perceived as a place of great chaos,
with little respect for property or life, their research indicates that this was not the
case; property rights were protected and civil order prevailed. Private agencies pro-
vided the necessary basis for an orderly society in which property was protected and
conflicts were resolved (1979, 10).
What were these private protective agencies? They were not governments
because they did not have a legal monopoly on keeping order. Instead, they included
such organizations as land clubs, cattlemens associations, mining camps, and wagon
trains.
So-called land clubs were organizations established by settlers before the U.S.
government even surveyed the land, let alone started to sell it or give it away. Because
disputes over land titles are inevitable, the land clubs adopted their own constitutions,
laying out the laws that would define and protect property rights in land (Anderson
and Hill 1979, 15). They administered land claims, protected them from outsiders,
and arbitrated disputes. Social ostracism was used effectively against those who vio-
lated the rules. Establishing property rights in this way minimized disputesand
violence.
The wagon trains that transported thousands of people to the California gold
fields and other parts of the West usually established their own constitutions before
setting out. These constitutions often included detailed judicial systems. As a conse-
quence, writes Benson, [t]here were few instances of violence on the wagon trains
even when food became extremely scarce and starvation threatened. When crimes
against persons or their property were committed, the judicial system . . . would take
effect (1998, 102). Ostracism and threats of banishment from the group, instead of
threats of violence, were usually sufficient to correct rule breakers behavior.
Dozens of movies have portrayed the nineteenth-century mining camps in the
West as hot beds of anarchy and violence, but John Umbeck discovered that, begin-
ning in 1848, the miners began forming contracts with one another to restrain their
own behavior (1981, 51). There was no government authority in California at the
time, apart from a few military posts. The miners contracts established property
rights in land (and in any gold found on the land) that the miners themselves
enforced. Miners who did not accept the rules the majority adopted were free to mine
elsewhere or to set up their own contractual arrangements with other miners. The
rules that were adopted were often consequently established with unanimous consent
(Anderson and Hill 1979, 19). As long as a miner abided by the rules, the other
miners defended his rights under the community contract. If he did not abide by the
agreed-on rules, his claim would be regarded as open to any [claim] jumpers
(Umbeck 1981, 53).
The mining camps hired enforcement specialistsjustices of the peace and
arbitratorsand developed an extensive body of property and criminal law. As a
result, there was very little violence and theft. The fact that the miners were usually
armed also helps to explain why crime was relatively infrequent. Benson concludes,
228 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
The contractual system of law effectively generated cooperation rather than conflict,
and on those occasions when conflict arose it was, by and large, effectively quelled
through nonviolent means (1998, 105).
When government bureaucrats failed to police cattle rustling effectively,
ranchers established cattlemens associations that drew up their own constitutions
and hired private protection agencies that were often staffed by expert gunmen.
This action deterred cattle rustling. Some of these gunmen did drift in and out of
a life of crime, write Anderson and Hill (1979, 18), but they were usually dealt with
by the cattlemens associations and never created any kind of large-scale criminal
organization, as some have predicted would occur under a regime of private law
enforcement.
In sum, this work by Benson, Anderson and Hill, Umbeck, and others chal-
lenges with solid historical research the claims made by the West was violent
authors. The civil society of the American West in the nineteenth century was much
more peaceful than American cities are today, and the evidence suggests that in fact the
Old West was not a very violent place at all. History also reveals that the expanded
presence of the U.S. government was the real cause of a culture of violence in the
American West. If there is anything to the idea that a nineteenth-century culture of
violence on the American frontier is the genesis of much of the violence in the United
States today, the main source of that culture is therefore government, not civil society.
The Real Cause of Violence in the American West
The real culture of violence in the American West of the latter half of the nineteenth
century sprang from the U.S. governments policies toward the Plains Indians. It is
untrue that white European settlers were always at war with Indians, as popular
folklore contends. After all, Indians assisted the Pilgrims and celebrated the first
Thanksgiving with them; John Smith married Pocahontas; a white man (mostly Scots,
with some Cherokee), John Ross, was the chief of the Cherokees of Tennessee and
North Carolina; and there was always a great deal of trade with Indians, as opposed to
violence. As Jennifer Roback has written, Europeans generally acknowledged that
the Indians retained possessory rights to their lands. More important, the English
recognized the advantage of being on friendly terms with the Indians. Trade with the
Indians, especially the fur trade, was profitable. War was costly (1992, 9). Trade and
cooperation with the Indians were much more common than conflict and violence
during the first half of the nineteenth century.
Terry Anderson and Fred McChesney relate how Thomas Jefferson found that
during his time negotiation was the Europeans predominant means of acquiring land
from Indians (1994, 56). By the twentieth century, some $800 million had been paid
for Indian lands. These authors also argue that various factors can alter the incentives
for trade, as opposed to waging a war of conquest as a means of acquiring land. One
of the most important factors is the existence of a standing army, as opposed to
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 229
VOLUME 15, NUMBER 2, FALL 2010
militias, which were used in the American West prior to the War Between the States.
On this point, Anderson and McChesney quote Adam Smith, who wrote that [i]n a
militia, the character of the labourer, artificer, or tradesman, predominates over that
of the soldier: in a standing army, that of the soldier predominates over every other
character. (1994, 52). A standing army, according to Anderson and McChesney,
creates a class of professional soldiers whose personal welfare increases with warfare,
even if fighting is a negative-sum act for the population as a whole (52).
The change from militia to a standing army took place in the American West
immediately upon the conclusion of the War Between the States. The result, say
Anderson and McChesney, was that white settlers and railroad corporations were able
to socialize the costs of stealing Indian lands by using violence supplied by the U.S.
Army. On their own, they were much more likely to negotiate peacefully. Thus, raid
replaced trade in whiteIndian relations. Congress even voted in 1871 not to ratify
any more Indian treaties, effectively announcing that it no longer sought peaceful
relations with the Plains Indians.
Anderson and McChesney do not consider why a standing army replaced militias
in 1865, but the reason is not difficult to discern. One has only to read the official
pronouncements of the soldiers and political figures who launched a campaign of
extermination against the Plains Indians.
On June 27, 1865, General William Tecumseh Sherman was given command of
the Military District of the Missouri, which was one of the five military divisions into
which the U.S. government had divided the country. Sherman received this command
for the purpose of commencing the twenty-five-year war against the Plains Indians,
primarily as a form of veiled subsidy to the government-subsidized railroad corpora-
tions and other politically connected corporations involved in building the transcon-
tinental railroads. These corporations were the financial backbone of the Republican
Party. Indeed, in June 1861, Abraham Lincoln, former legal counsel of the Illinois
Central Railroad, called a special emergency session of Congress not to deal with the
two-month-old Civil War, but to commence work on the Pacific Railway Act. Subsi-
dizing the transcontinental railroads was a primary (if not the primary) objective of the
new Republican Party. As Dee Brown writes in Hear That Lonesome Whistle Blow, a
history of the building of the transcontinental railroads, Lincolns 1862 Pacific Rail-
way Act assured the fortunes of a dynasty of American families . . . the Brewsters,
Bushnells, Olcotts, Harkers, Harrisons, Trowbridges, Lanworthys, Reids, Ogdens,
Bradfords, Noyeses, Brooks, Cornells, and dozens of others (2001, 49), all of whom
were tied to the Republican Party.
The federal railroad subsidies enriched many Republican members of Congress.
Congressman Thaddeus Stevens of Pennsylvania received a block of [Union Pacific]
stock in exchange for his vote on the Pacific Railroad bill, writes Brown (2001, 58).
The Pennsylvania iron manufacturer and congressman also demanded a legal
requirement that all iron used in constructing the railroad be made in the United
States.
230 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
Republican congressman Oakes Ames of Massachusetts was a shovel manufac-
turer who became a loyal ally of the legislation after he was promised shovel
contracts (Brown 2001, 58). A great many shovels must have been required to dig
railroad beds from Iowa to California.
Sherman wrote in his memoirs that as soon as the war ended, My thoughts and
feelings at once reverted to the construction of the great Pacific Railway. . . . I put
myself in communication with the parties engaged in the work, visiting them in
person, and assured them that I would afford them all possible assistance and encour-
agement (2005, 775). We are not going to let a few thieving, ragged Indians check
and stop the progress [of the railroads], Sherman wrote to Ulysses S. Grant in 1867
(qtd. in Fellman 1995, 264).
The chief engineer of the government-subsidized transcontinental railroads was
Grenville Dodge, another of Lincolns generals during the war with whom Sherman
worked closely afterward. As Murray Rothbard points out, Dodge helped swing the
Iowa delegation to Lincoln at the 1860 Republican National Convention, and [i]n
return, early in the Civil War, Lincoln appointed Dodge to army general. Dodges
task was to clear the Indians from the designated path of the countrys first heavily
subsidized federally chartered trans-continental railroad, the Union Pacific. In this
way, Rothbard concludes, conscripted Union troops and hapless taxpayers were
coerced into socializing the costs of constructing and operating the Union Pacific
(1997, 130).
Immediately after the war, Dodge proposed enslaving the Plains Indians and
forcing them to do the grading on the railroad beds, with the Army furnishing a
guard to make the Indians work, and keep them from running away (Brown 2001,
64). Union army veterans were to be the overseers of this new class of slaves.
Dodges proposal was rejected; the U.S. government decided instead to try to kill as
many Indians as possible.
In his memoirs, Sherman has high praise for Thomas Clark Durant, the vice
president of the Union Pacific Railroad, as a person of ardent nature, of great ability
and energy, enthusiastic in his undertaking (2005, 775). Durant was also the chief
instigator of the infamous Credit Mobilier scandal, one of the most shocking exam-
ples of political corruption in U.S. history. Sherman himself had invested in railroads
before the war, and he was a consummate political insider, along with Durant, Dodge,
and his brother, Senator John Sherman.
President Grant made his old friend Sherman the armys commanding general,
and another Civil War luminary, General Phillip Sheridan, assumed command on the
ground in the West. Thus the great triumvirate of the Union Civil War effort,
writes Sherman biographer Michael Fellman, formulated and enacted military
Indian policy until reaching, by the 1880s, what Sherman sometimes referred to as
the final solution of the Indian problem (1995, 260).
What Sherman called the final solution of the Indian problem involved kill-
ing hostile Indians and segregating their pauperized survivors in remote places.
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 231
VOLUME 15, NUMBER 2, FALL 2010
These men, writes Fellman, applied their shared ruthlessness, born of their Civil
War experiences, against a people all three [men] despised. . . . Shermans overall
policy was never accommodation and compromise, but vigorous war against the
Indians, whom he regarded as a less-than-human and savage race (1995, 260).
All of the other generals who took part in the Indian Wars were like Sherman
[and Sheridan], Civil War luminaries, writes Sherman biographer John Marszalek.
Their names were familiar fromCivil War battles: John Pope, O. O. Howard, Nelson
A. Miles, Alfred H. Terry, E. O. C. Ord, C. C. Augur . . . Edward Canby . . . George
Armstrong Custer and Benjamin Garrison (1993, 380). General Winfield Scott
Hancock also belongs on this list.
Sherman and Sheridans biographers frequently point out that these men appar-
ently viewed the Indian Wars as a continuation of the job they had performed during
the Civil War. Sherman viewed Indians as he viewed recalcitrant Southerners during
the war and newly freed people after: resisters to the legitimate forces of an ordered
society (Marszalek 1993, 380). Marszalek might well have written also that South-
erners, former slaves, and Indians were not so much opposed to an ordered society,
but to being ordered around by politicians in Washington, D.C., primarily for the
benefit of the politicians corporate benefactors.
During the Civil War, Sherman and Sheridan had practiced a total war of
destruction of property. . . . Now the army, in its Indian warfare, often wiped out
entire villages (Marszalek 1993, 382). Fellman writes that Sherman charged Sheri-
dan to act with all the vigor he had shown in the Shenandoah Valley during the final
months of the Civil War (1995, 270). Sheridans troops had burned and plundered
the Shenandoah Valley after the Confederate army had evacuated the area and only
women, children, and elderly men remained there (Morris 1992, 183). Even Prussian
army officers are said to have been shocked when after the war Sheridan boasted to
them of his exploits in the Shenandoah Valley.
[Sherman] insisted that the only answer to the Indian problem was all-out
warof the kind he had utilized against the Confederacy, writes Marszalek. Since
the inferior Indians refused to step aside so superior American culture could create
success and progress, they had to be driven out of the way as the Confederates had
been driven back into the Union (1993, 380).
Shermans compulsion for the extermination of anyone opposed to turning
the U.S. state into an empire expressed the same reasoning he had expressed earlier
with regard to his role in the War Between the States. In a letter to his wife early in the
war, he declared that his ultimate purpose was extermination, not of soldiers alone,
that is the least part of the trouble, but the people. Mrs. Sherman responded by
expressing her similar wish that the conflict would be a war of extermination, and
that all [Southerners] would be driven like the swine into the sea. May we carry fire
and sword into their states till not one habitation is left standing (qtd. in Walters
1973, 61). Sherman did his best to take his wifes advice, especially during his famous
march to the sea. It is little wonder that Indian Wars historian S. L. A. Marshall
232 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
observes, [M]ost of the Plains Indian bands were in sympathy with the Southern
cause during the war (1972, 24).
One theme among all of these Union Civil War veterans is that they considered
Indians to be subhuman and racially inferior to whites and therefore deserving of
extermination if they could not be controlled by the white population. Sherman
himself thought of the former slaves in exactly the same way. The Indians give a fair
illustration of the fate of the negroes if they are released from the control of the
whites, he once said (qtd. in Kennett 2001, 296). He believed that intermarriage of
whites and Indians would be disastrous, as he claimed it was in New Mexico, where
the blending of races had produced general equality, which led inevitably to Mexican
anarchy (qtd. in Kennett 2001, 297).
Sherman described the inhabitants of New Mexico, many of whom were part
Mexican (Spanish), part Indian, and part Negro, as mongrels. His goal was to
eliminate the possibility that such racial amalgamation might occur elsewhere in the
United States, by undertaking to effect what Michael Fellman called a racial cleans-
ing of the land (1995, 264), beginning with extermination of the Indians.
Sherman, Sheridan, and the other top military commanders were not shy about
announcing that their objective was extermination, a term that Sherman used literally
on a number of occasions, as he had in reference to Southerners only a few years
earlier. He and Sheridan are forever associated with the slogan the only good Indian
is a dead Indian. All the Indians will have to be killed or be maintained as a species
of paupers, he said. Sherman announced his objective as being to prosecute the war
with vindictive earnestness . . . till [the Indians] are obliterated or beg for mercy
(qtd. in Fellman 1995, 270). According to Fellman, Sherman gave Sheridan prior
authorization to slaughter as many women and children as well as men Sheridan or his
subordinates felt was necessary when they attacked Indian villages (1995, 271).
In case the media back east got wind of such atrocities, Sherman promised
Sheridan that he would run interference against any complaints: I will back you with
my whole authority, and stand between you and any efforts that may be attempted in
your rear to restrain your purpose or check your troops (qtd. in Fellman 1995, 271).
In later correspondence, Sherman wrote to Sheridan, I amcharmed at the handsome
conduct of our troops in the field. They go in with the relish that used to make our
hearts glad in 18645 (qtd. in Fellman 1995, 272).
Sherman and Sheridans troops conducted more than one thousand attacks on
Indian villages, mostly in the winter months, when families were together. The U.S.
armys actions matched its leaders rhetoric of extermination. As mentioned earlier,
Sherman gave orders to kill everyone and everything, including dogs, and to burn
everything that would burn so as to increase the likelihood that any survivors would
starve or freeze to death. The soldiers also waged a war of extermination on the
buffalo, which was the Indians chief source of food, winter clothing, and other goods
(the Indians even made fish hooks out of dried buffalo bones and bow strings out of
sinews).
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 233
VOLUME 15, NUMBER 2, FALL 2010
By 1882, the buffalo were all but extinct, and the cause was not just the tragedy
of the commons. Because buffalo hides could be sold for as much as $3.50 each, an
individual hunter would kill more than a hundred a day for as many days as he cared
to hunt on the open plain. This exploitation of a common property resource
decimated the buffalo herds, but the decimation was also an integral part of U.S.
military policy aimed at starving the Plains Indians. When a group of Texans asked
Sheridan if he could not do something to stop the extermination of the buffalo, he
said: Let themkill, skin, and sell until the buffalo is exterminated, as it is the only way
to bring lasting peace and allow civilization to advance (qtd. in Brown 1970, 265).
The escalation of violence against the Plains Indians actually began in earnest
during the War Between the States. Sherman and Sheridans Indian policy was a
continuation and escalation of a policy that General Grenville Dodge, among others,
had already commenced. In 1851, the Santee Sioux Indians in Minnesota sold
24 million acres of land to the U.S. government for $1,410,000 in a typical trade
(as opposed to raid) scenario. The federal government once again did not keep its side
of the bargain, though, reneging on its payment to the Indians (Nichols 1978). By
1862, thousands of white settlers were moving onto the Indians land, and a crop
failure in that year caused the Santee Sioux to become desperate for food. They
attempted to take back their land by force with a short war in which President
Lincoln placed General John Pope in charge. Pope announced, It is my purpose to
utterly exterminate the Sioux. . . . They are to be treated as maniacs or wild beasts,
and by no means as people with whom treaties or compromises can be made (qtd. in
Nichols 1978, 87).
At the end of the month-long conflict, hundreds of Indians who had been taken
prisoner were subjected to military trials lasting about ten minutes each, according
to Nichols (1978). Most of the adult male prisoners were found guilty and sentenced
to deathnot based on evidence of the commission of a crime, but on their mere
presence at the end of the fighting. Minnesota authorities wanted to execute all 303
who were convicted, but the Lincoln administration feared that the European powers
would not view such an act favorably and did not want to give them an excuse to assist
the Confederacy in any way. Therefore, only 38 of the Indians were hanged,
making this travesty of justice still the largest mass execution in U.S. history (Nichols
1978). To appease the Minnesotans who wanted to execute all 303, Lincoln promised
them $2 million and pledged that the U.S. Army would remove all Indians from the
state at some future date.
One of the most famous incidents of Indian extermination, known as the Sand
Creek Massacre, took place on November 29, 1864. There was a Cheyenne and
Arapaho village located on Sand Creek in southeastern Colorado. These Indians had
been assured by the U.S. government that they would be safe in Colorado. The
government instructed them to fly a U.S. flag over their village, which they did, to
assure their safety. However, another Civil War luminary, Colonel John
Chivington, had other plans for them as he raided the village with 750 heavily armed
234 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
soldiers. One account of what happened appears in the book Crimsoned Prairie: The
Indian Wars (1972) by the renowned military historian S. L. A. Marshall, who held
the title of chief historian of the European Theater in World War II and authored
thirty books on American military history.
Chivingtons orders were: I want you to kill and scalp all, big and little; nits
make lice (qtd. in Marshall 1972, 37). Then, despite the display of the U.S. flag and
white surrender flags by these peaceful Indians, Chivingtons troops began a full day
given over to blood-lust, orgiastic mutilation, rapine, and destructionwith
Chivington . . . looking on and approving (Marshall 1972, 38). Marshall notes that
the most reliable estimate of the number of Indians killed is 163, of which 110 were
women and children (39).
Upon returning to his fort, Chivington and his raiders demonstrated around
Denver, waving their trophies, more than one hundred drying scalps. They were
acclaimed as conquering heroes, which was what they had sought mainly. One
Republican Party newspaper announced, Colorado soldiers have once again covered
themselves with glory (qtd. in Marshall 1972, 39).
An even more detailed account of the Sand Creek Massacre, based on U.S. Army
records, biographies, and firsthand accounts, appears in Dee Browns classic Bury My
Heart at Wounded Knee: An Indian History of the American West: When the troops
came up to [the squaws,] they ran out and showed their persons to let the soldiers
know they were squaws and begged for mercy, but the soldiers shot them all. . . .
There seemed to be indiscriminate slaughter of men, women and children. . . . The
squaws offered no resistance. Every one . . . was scalped (1970, 89). Browns
narrative gets much more graphic. The effect of such behavior was to eliminate
forever the possibility of peaceful relations with these Indian tribes. They understood
that they had become the objects of a campaign of extermination. As Brown writes,
In a few hours of madness at Sand Creek, Chivington and his soldiers destroyed the
lives or the power of every Cheyenne and Arapaho chief who had held out for peace
with the white men (92). For the next two decades, the Plains Indians would do
their best to return the barbarism in kind.
The books by Brown and Marshall show that the kind of barbarism that
occurred at Sand Creek, Colorado, was repeated many times during the next two
decades. For example, in 1868 General Winfield Scott Hancock ordered Custer to
attack a Cheyenne camp with infantry, which Custer did. The attack led Superinten-
dent of Indian Affairs Thomas Murphy to report to Washington that General
Hancocks expedition . . . has resulted in no good, but, on the contrary, has been
productive of much evil (qtd. in Brown 1970, 157). A report of the attack prepared
for the U.S. secretary of the interior concluded: For a mighty nation like us to be
carrying on a war with a few straggling nomads, under such circumstances, is a
spectacle most humiliating, and injustice unparalleled, a national crime most revolt-
ing, that must, sooner or later, bring down upon us or our posterity the judgment of
Heaven (qtd. in Brown 1970, 157).
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 235
VOLUME 15, NUMBER 2, FALL 2010
As the war on the Cheyenne continued, Custer and his troops apparently
decided that to kill or hang all the warriors, as General Sheridan had ordered,
meant separating them from the old men, women, and children. This work was too
slow and dangerous for the cavalrymen; they found it much more efficient and safe to
kill indiscriminately. They killed 103 Cheyenne, but only eleven of them were war-
riors (Brown 1970, 169).
Marshall calls Sheridans orders to Custer the most brutal orders ever published
to American troops (1972, 106). This is a powerful statement coming from a man
who wrote thirty books on American military history. In addition to ordering Custer
to shoot or hang all warriors, even those that surrendered, Sheridan commanded him
to slaughter all ponies and to burn all tepees and their contents. Sheridan held with
but one solution to the Indian problemexterminationand Custer was his quite
pliable instrument, writes Marshall (1972, 106).
One of the oddest facts about the Indian Wars is that Custer famously instructed
a band to play an Irish jig called Garry Owens during the attacks on Indian villages.
This was Custers way of gentling war. It made killing more rhythmic, writes
Marshall (1972, 107).
During an attack on a Kiowa village on September 26, 1874, soldiers killed more
than one thousand horses and forced 252 Kiowas to surrender. They were thrown
into prison cells, where each day their captors threw chunks of raw meat to them as if
they were animals in a cage (Brown 1970, 270). On numerous occasions, fleeing
Indians sought refuge in Canada, where they knew they would be unmolested.
Canadians built their own transcontinental railroad in the late nineteenth century,
but they did not commence a campaign of extermination against the Indians living in
that country as the government did in the United States.
No one denies that the U.S. government killed tens of thousands of Indians,
including women and children, during the years from 1862 to 1890. There are
various estimates of the number of Indians killed, the highest being that of historian
Russell Thornton (1990), who used mostly military records to estimate that about
forty-five thousand Indians, including women and children, were killed during the
wars on the Plains Indians. It is reasonable to assume that thousands more were
maimed and disabled for life and received little or no medical assistance. The thou-
sands of soldiers who participated in the Indian Wars lived in a culture of violence and
death that was cultivated by the U.S. government for a quarter of a century.
Conclusions
The culture of violence in the American West of the late nineteenth century was
created almost entirely by the U.S. governments military interventions, which were
primarily a veiled subsidy to the government-subsidized transcontinental railroad
corporations. As scandals go, the war on the Plains Indians makes the Credit Mobilier
affair seem inconsequential.
236 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
There is such a thing as a culture of war, especially in connection with a war as
gruesome and bloody as the war on the Plains Indians. On this topic, World War II
combat veteran Paul Fussell has written: The culture of war . . . is not like the culture
of ordinary peace-time life. It is a culture dominated by fear, blood, and sadism, by
irrational actions and preposterous . . . results. It has more relation to science fiction
or to absurdist theater than to actual life (1997, 354). Such was the culture the
U.S. Army created throughout much of the American West for the quarter century
after the War Between the States. It is the culture that all military interventions at
all times have created, and it contrasts sharply with the predominantly peaceful culture
of the stateless civil society on the American frontier during much of the nineteenth
century.
Fussell made this statement based on his personal experiences in combat, but it
echoes the scholarly writing of Ludwig von Mises (who, let us remember, was also an
Austrian army officer who had substantial combat experience during World War I):
What distinguishes man from animals is the insight into the advantages that can be
derived from cooperation under the division of labor. Man curbs his innate Instinct of
aggression in order to cooperate with other human beings. The more he wants to
improve his material well being, the more he must expand the system of the division
of labor. Concomitantly he must more and more restrict the sphere in which he
resorts to military action. Human cooperation under the division of labor in the civil
society bursts asunder, Mises wrote, whenever citizens turn into warriors and
resort to war (1998, 827).
It is not true that all whites waged a war of extermination against the Plains
Indians. As noted earlier and as noted throughout the literature of the Indian Wars,
many whites preferred the continuation of the peaceful trade and relations with
Indians that had been the norm during the first half of the nineteenth century.
(Conflicts sometimes occurred, of course, but trade dominated raid during that
era.) Canadians built a transcontinental railroad without a Shermanesque campaign of
extermination against the Indians in Canada. It is telling that the Plains Indians
often sought refuge in Canada when the U.S. Army had them on the run.
The U.S. government dehumanized the Plains Indians, describing them as wild
beasts, in order to justify slaughtering them, just as Sherman and his wife, among
many others, dehumanized Southerners during and after the War Between the States.
The same dehumanization by the governments propaganda machine would eventu-
ally target Filipinos, who were killed by the hundreds of thousands at the hands of
the U.S. Army during their 18991902 revolt against the U.S. conquest of their
country barely a decade after the Indian Wars had finally ended. President Theodore
Roosevelt justified the slaughter of hundreds of thousands of Filipinos by calling
them savages, half-breeds, a wild and ignorant people (qtd. in Powell 2006, 64).
Dehumanization of certain groups of resisters at the hands of the states propa-
ganda apparatus is a prerequisite for the culture of war and violence that has long been
the main preoccupation of the U.S. state.
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 237
VOLUME 15, NUMBER 2, FALL 2010
It was not necessary to kill tens of thousands of Indians and imprison thousands
more in concentration camps (reservations) for generations in order to build a
transcontinental railroad. Nor were the wars on the Plains Indians a matter of the
white populations waging a war of extermination. This war stemmed from the
policy of the relatively small group of white men who ran the Republican Party (with
assistance from some Democrats), which effectively monopolized national politics for
most of that time.
These men utilized the states latest technologies of mass killing developed
during the Civil War and its mercenary soldiers (including the former slaves known
as buffalo soldiers) to wage their war because they were in a hurry to shovel
subsidies to the railroad corporations and other related business enterprises. Many of
them profited handsomely, as the Credit Mobilier scandal revealed. The railroad
corporations were the Microsofts and IBMs of their day, and the doctrines of
neomercantilism defined the Republican Partys reason for existing (DiLorenzo
2006). The Republican Party was, after all, the Party of Lincoln, the great railroad
lawyer and a lobbyist for the Illinois Central and other midwestern railroads during
his day.
References
Anderson, Terry, and P. J. Hill. 1979. An American Experiment in Anarcho-capitalism: The
Not So Wild, Wild West. Journal of Libertarian Studies 3: 929.
Anderson, Terry, and Fred L. McChesney. 1994. Raid or Trade? An Economic Model of
Indian-White Relations. Journal of Law and Economics 37: 3974.
Benson, Bruce. 1998. To Serve and Protect: Privatization and Community in Criminal Justice.
New York: New York University Press.
Brown, Dee. 1970. Bury My Heart at Wounded Knee: An Indian History of the American West.
New York: Holt.
. 2001. Hear That Lonesome Whistle Blow. New York: Owl Books.
DiLorenzo, Thomas J. 2006. Lincoln Unmasked: What Youre Not Supposed to Know about
Dishonest Abe. New York: Crown Forum.
Fellman, Michael. 1995. Citizen Sherman: A Life of William Tecumseh Sherman. Lawrence:
University of Kansas Press.
Franz, Joe B. 1969. The Frontier Tradition: An Invitation to Violence. In The History of
Violence in America, edited by Hugh D. Graham and Ted R. Gurr, 12754. New York:
New York Times Books.
Fussell, Paul. 1997. The Culture of War. In The Costs of War: Americas Pyrrhic Victories, edited
by John Denson, 35157. New Brunswick, N.J.: Transaction.
Hollon, W. Eugene. 1974. Frontier Violence: Another Look. New York: Oxford University Press.
Kennett, Lee. 2001. Sherman: A Soldiers Life. New York: HarperCollins.
Marshall, S. L. A. 1972. Crimsoned Prairie: The Indian Wars. New York: Da Capo Press.
238 F THOMAS J. DILORENZO
THE INDEPENDENT REVIEW
Marszalek, John F. 1993. Sherman: A Soldiers Passion for Order. New York: Vintage Books.
McGrath, Roger. 1984. Gunfighters, Highwaymen, and Vigilantes: Violence on the Frontier.
Berkeley and Los Angeles: University of California Press.
Mises, Ludwig von. 1998. Human Action. Scholars Edition. Auburn, Ala.: Ludwig von Mises
Institute.
Morris, Roy. 1992. Sheridan: The Life & Wars of General Phil Sheridan. New York: Vintage
Books.
Nichols, David A. 1978. Lincoln and the Indians. Columbia: University of Missouri Press.
Powell, Jim. 2006. Bully Boy: The Truth about Theodore Roosevelts Legacy. New York: Crown
Forum.
Roback, Jennifer. 1992. Exchange, Sovereignty, and Indian-Anglo Relations. In Property
Rights and Indian Economies, edited by Terry Anderson, 526. Savage, Md.: Roman &
Littlefield.
Rothbard, Murray N. 1997. Americas Two Just Wars: 1775 and 1861. In The Costs of War:
Americas Pyrrhic Victories, edited by John Denson, 11933. New Brunswick, N.J.: Trans-
action.
Sherman, William T. 2005. Memoirs. New York: Barnes & Noble.
Thornton, Russel. 1990. American Indian Holocaust and Survival. Oklahoma City: University
of Oklahoma Press.
Umbeck, John. 1981. Might Makes Rights: ATheory of the Formation and Initial Distribution
of Property Rights. Economic Inquiry 19: 3859.
Walters, John Bennett. 1973. Merchant of Terror: General Sherman and Total War. New York:
Bobbs-Merrill.
THE CULTURE OF VIOLENCE IN THE AMERICAN WEST F 239
VOLUME 15, NUMBER 2, FALL 2010
LIBERTARIAN PAPERS VOL. 1, ART. NO. 12 (2009)


1
THE ROLE OF SUBSCRIPTION-BASED PATROL AND
RESTITUTION IN THE FUTURE OF LIBERTY
GIL GUILLORY AND PATRICK C. TINSLEY
*
Introduction
SUBSCRIPTION-BASED PATROL AND RESTITUTION (SPR) services of
one type or another were suggested by Molinari (1849), Tannehill and
Tannehill (1970), Rothbard (1970), and Friedman (1973). Alternative
arrangements have been suggested by Barnett (1998)
1
and Murphy (2002).
2

Thorough and serious criticism has most notably come from Nozick (1974).
Our conception of the business model for such a firm is, firstly,
subscription services (residential subscribers pay ~$35/mo). The services
rendered are: patrol of premises and environs, first-response for home
monitoring systems or other calls, monthly crime reports to the subscriber,
crime resolution, and crime indemnification. By crime resolution we mean:
should a crime occur, the business investigates, attempts to locate the
perpetrator, and facilitates engaging the perpetrator in mediation or
arbitration to obtain restitution for the victim-subscriber. By crime
indemnification we mean: should crime resolution fail to make the subscriber

*
Gil Guillory, P.E., PMP (gil.guillory@gmail.com), is a libertarian writer and
registered professional engineer in Texas. B.S.Chem.E., University of Southwestern
Louisiana, M.S.Chem.E., University of Virginia. He is a project manager of petrochemical
capital projects, currently employed by Aker Solutions in Houston, Texas. Patrick Tinsley
(patrick.tinsley@gmail.com) is an attorney practicing in Belmont, MA.
CITE THIS ARTICLE AS: Gil Guillory & Patrick Tinsley, The Role of Subscription-
Based Patrol and Restitution in the Future of Liberty, Libertarian Papers 1, 12 (2009).
ONLINE AT: libertarianpapers.org. THIS ARTICLE IS subject to a Creative Commons
Attribution 3.0 License (creativecommons.org/licenses).
1
Barnett suggested the establishment of Rights Maintenance Organizations, which
are characterized by legal services, supplemented by patrol services. This arrangement is
criticized in Guillory and Sitren (2007).
2
Murphy suggested tort liability insurance as the main feature of the private
provision of defense, not to be confused with tort indemnification, which we suggest
here.
2 LIBERTARIAN PAPERS 1, 12 (2009)
whole,
3
the business will pay the subscriber directly to make him
chrematistically whole. In the case that the perpetrator is found, but does not
submit to either mediation or arbitration, then a Notice of Refusal to Arbitrate
would be issued to interested parties socially connected to the perpetrator
(neighbors, relatives, employer, insurance company, etc.).
4
Legally, the
business stands as surety for the civil liability of the direct (special) damages
5

caused by the perpetrator. Secondly, the SPR business will have a number of
premium services available that build upon its trustworthiness and patrol
activities: special home watch (for those absent from home for extended
periods), mail/newspaper retrieval, pet feeding/watering, escorting children,
women, or elderly, etc. Many of these services will have a competitive
marginal cost since the patrolman is already in the area, compared to other
businesses dedicated to these services, where travel time is the majority of
labor cost.
We have written three papers in this area, which appear to be the only
detailed written treatments of this business model.
In Guillory and Drake (2006), the authors explored the business
models viability by looking at whether each of the elements of the business
model (patrol, insurance, first-response, premium services, crime reports,
mediation, and arbitration) is essential. This paper explored the questions of
whether an SPR company should also adjudicate disputes and whether it
should have arrest powers or search powers (contractual or otherwise). It
addressed the challenges of potential free riding in a subscription
environment, multiple-firm interaction, optimum firm size, and cooperation
problems. The paper reported on secondary market research on the home
monitoring market and we reported on our primary marketing research pilot.
In Guillory and Sitren (2007), the authors reviewed the laws of Texas as
they apply to the business model. They determined the taxes and regulations
it would be bound by, the required involvement of state agents, and the legal

3
Making the victim whole means that the victim and the perpetrator come to a
mutually agreed solution which could include payments of money, performance of
services, and/or other arrangements. The key element is that the victim agrees to the
arrangement as a suitable remedy for the tort. In the absence of a mediated agreement,
making the victim whole is only a loose term, unless qualified.
4
It is intended for this practice to eventually act as an important threat, incentivizing
perpetrators to submit to mediation or arbitration.
5
That is, it does not stand for surety for general damages. Examples of special
damages include: extra costs, repair or replacement of damaged property, lost earnings
(both historically and in the future), loss of irreplaceable items, and additional domestic
costs. Examples of general damages include physical or emotional pain and suffering, loss
of companionship, loss of consortium, disfigurement, loss of reputation, loss or
impairment of mental or physical capacity, and loss of enjoyment of life.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 3
duties to report certain crimes to the police. The authors explored the legality
of, and possible civil liability due to, the novel practice of issuing Notices of
Refusal to Arbitrate.
In Guillory, Blakeney, and Alston (2007), the authors calculated the
payouts and reserving requirements for the crime perils of murder, rape,
assault, robbery, burglary, larceny, and motor vehicle theft by modeling the
frequency and severity of each peril, constructing an actuarial model, and
performing monte carlo simulations with and without coverage
modifications.
The present paper explores the possible historical consequences of the
successful establishment of a subscription patrol and restitution business
sector. In support of the story we posit, we first address a number of topics
to set the tone and clear up misconceptions about what is meant by free
market provision of defense and law.
An outline follows:
1. Entrepreneur as Agent of Social Change
2. The Law Enforcement Paradigm and Vertical Integration
3. Search and Arrest
4. Does Free-Market Adjudication Provide Justice?
5. Development of the SPR ModelSocial Strength and Derived
Demand
6. Crisis and Liberty
1. Entrepreneur as Agent of Social Change
The institutions of education, such as books, articles, lectures,
conferences, think tanks, and university professorships, are indispensable in
the movement for laissez faire. Underappreciated by some is the necessary
role of the firm and the entrepreneur. Certainly, nonprofit organizations are
important ideological outposts, building beachheads in the overall campaign.
But there remain distinct advantages for the firm over and above the
nonprofit organization.
In a developed market economy, the entrepreneur sculpts the vast
landscape of the institutional structures in which the mass of people live. We
live in privately designed housing developments. We shop in grocery stores
and malls that are very carefully designed in myriad ways. We go to movie
theaters, watch commercial television. The computers we use and the
computer programs with which we learn, work, and communicate; the design
4 LIBERTARIAN PAPERS 1, 12 (2009)
of the cars we drive; the structure of services we use, such as fast food
preparation and delivery or mobile phone servicesall of these institutions
are provided to us by entrepreneurs.
In an oft-quoted passage, Mises wrote:
The direction of all economic affairs is in the market society a task of the
entrepreneurs. Theirs is the control of production. They are at the helm and steer
the ship. A superficial observer would believe that they are supreme. But
they are not. They are bound to obey unconditionally the captains
orders. The captain is the consumer. Neither the entrepreneurs nor the
farmers nor the capitalists determine what has to be produced. The
consumers do that. If a businessman does not strictly obey the orders of
the public as they are conveyed to him by the structure of market prices,
he suffers losses, he goes bankrupt, and is thus removed from his
eminent position at the helm. Other men who did better in satisfying
the demand of the consumers replace him. [Mises, 1949, p. 270;
emphasis added]
Most writers draw attention to the latter part of the paragraph, but we
draw attention to the first part. The entrepreneur creates institutions and all
their myriad details, then the consumers either accept or reject the package
they create. In a deep and broad sense, because of the wide-ranging effects of
the choices that entrepreneurs make in the design of their business processes,
models, and products and services, their ideology is important. Mises again:
The concept of an ideology is narrower than that of a world view. In
speaking of ideology we have in view only human action and social
cooperation and disregard the problems of metaphysics, religious
dogma, the natural sciences, and the technologies derived from them.
Ideology is the totality of our doctrines concerning individual conduct
and social relations. Both, world view and ideology, go beyond the limits
imposed upon a purely neutral and academic study of things as they are.
They are not only scientific theories, but also doctrines about the ought,
i.e., about the ultimate ends which man should aim at in his earthly
concerns. [Mises, 1949, p. 178]
The entrepreneur, by his actions, tells the consumers that they ought to
embrace institutions of his design: that if they embrace these institutions, they
will be better off. Consumers ratify some of these institutions, the
entrepreneur earns a profit, and society is thereby transformed.
6
Henry Ford

6
See also Salerno (1990), especially the section Social Evolution as Ideological
Struggle at p. 49; and Nisbet (1975), p. 27982, where he refers to social inventions of a
broader stripe, including the guild, the trade fair, the marketplace the monastery, the
university, the studio, the trading company, the mutual aid association, and many others.
Nisbet stresses the intentional invention of these and many other institutions. After
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 5
and his motorcar. Fred Smith and overnight letter delivery. J. C. Fargo and
travelers cheques. Akio Morita and the Sony Walkman. Of course, not every
entrepreneur changes the world. But some do. And eventually, entrepreneurs
whose ideology includes libertarian ethics will found successful businesses
that instantiate libertarian ideology.
Some might challenge this line of inquiry, claiming that
entrepreneurship is about profitmaking, not designing institutions of a
particular ideology, libertarian or not.
7
But research has shown (Collins and
Porras, 2004) that companies who succeed in creating major social change
while trouncing their competition and beating the returns of the general
market all share the characteristic of having a core ideology beyond just
making money that guides and inspires people throughout an organization
and remains relatively fixed for long periods of time, and that their less
successful rivals lack this characteristic. As Collins and Porras write:
In a visionary company, the core values need no rational or external
justification. Nor do they sway with the trends and fads of the day. Nor
even do they shift in response to changing market conditions.
Further, they caution:
Core ideology does not come from mimicking the values of other
companieseven highly visionary companies; it does not come from
following the dictates of outsiders; it does not come from reading
management books; and it does not come from a sterile intellectual
exercise of calculating what values would be most pragmatic, most
popular, or most profitable. When articulating and codifying core
ideology, the key step is to capture what is authentically believed, not
what other companies set as their values or what the outside world
thinks the ideology should be.
When considering the means available to firms, it is clear that their
means are generally much greater than that of the nonprofit institutions in
society. This is because the incomes of nonprofits
8
are typically donated by

reviewing eras of both exceptionally fruitful propagation of social inventions and those of
relative sterility, he states:
I think the twentieth century has been singularly weak on the whole in social respects
The atmosphere of nationalism, of creeping bureaucratization of social life by the
state, the political clerisys adoration of those things which are done by the state alone
have inevitably had a suffocating effect upon the desire to create in social as well as
cultural ways. [Nisbet, 1975]
7
Here we provide a brief defense of our position on this point. For more, see
Guillory (2007).
8
Here we refer to nonprofits as libertarians understand the term. Tax-funded or
rent-seeking nonprofits would not fit all of the characterizations we make.
6 LIBERTARIAN PAPERS 1, 12 (2009)
ideological supporters whereas the incomes of firms are earned from a broad
cross-section (ideologically speaking) of society in exchange for providing
goods and services. A firm can expand as far as the market demands. On the
other hand, there is a much more constraining upper limit to the size of the
nonprofit. This limit is determined by the charitable giving of the
ideologically-minded supporters.
There is great social power in the fact that a successful firms modus
operandi is to create ideologically-infused institutions that are supported and
embraced by people who have no strong, or even no conscious, commitment
to the ideology. There are two reasons for this.
Firstly, the majority of people in society are not of a temperament to be
ideological radicals.
9
Whereas ideological radicals can be persuaded to
monetarily support nonprofit institutions, a firm can cut across
temperaments and derive its income from the majority of people who are not
ideological radicals. Therefore, the firm gains a reach that the nonprofit has
no hope of attaining. Further, those who are employed by nonprofit
institutions tend to be ideological radicals; whereas, the temperaments of
employees of firms are much more closely associated with the type of work
the employee performs.
10

Secondly, institutions influence ideology. Sometimes called the tyranny of
the status quo, the mere existence of an institution creates ongoing support for
that institution. This is due to a number of psychological factors. People are

9
This is commonsensical enough, but there is also evidence to support this position.
Psychologist David Keirsey developed a Temperament System that shares some
commonalities with the Myers-Briggs Type Indicator system and a number of other
temperament systems. For details, see the Wikipedia entries for David Keirsey and
Keirsey Temperament Sorter, as well as his website keirsey.com and his books in the
bibliography. Keirseys types and the rough percentage of the US population that exhibit
their temperaments are Artisan(38%), Idealist(12%), Rational(12%), and Guardian(38%).
Ideological radicals are drawn mainly from the Idealist and Rational ranks. Historians may
be interested to review Choiniere and Keirsey (1992), wherein they use historical evidence
to classify US Presidents into their temperaments. According to this work, there were no
Idealist Presidents, and only 8 Rational Presidents.
10
For instance, Dollar and Schoeder (2004) showed that applicants for Air Traffic
Control School (ATCS) were statistically more likely to be Judging (these were chi-
squared tests versus US population norms for MBTI types); those who passed ATCS
were more likely to be Judging; those who achieved the rank of Certified Professional
Controller (CPC) were more likely to be Judging; and those who achieved the rank of
CPC Supervisor or Manager were more likely to be Judging. ISTJ and ESTJ were by far
the most represented types among ATCS applicants, and they exceeded the US
population norms for those types. The SJ MBTI combination corresponds to the Keirsey
Temperament of Guardian. This is only one study in a vast literature documenting the
correlation between temperament and occupation.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 7
creatures of habit, and tend to use familiar institutions. People are social
referencers, tending to use the institutions that others use. People tend to
justify their choices post hoc, rationalizing their habit of supporting an
institutionin this case by being either a consumer or an employee. Lastly,
people prefer not to abandon known institutions that work in favor of
unknown institutions that might work better, but have not been so proven.
This last factor usually works against the program of laissez faire, which is to
abandon tangible government programs in favor of intangible market
solutions. In the case of an existing market institution, the opposite tendency
exists, in principle. This psychological resistance to abandon an institution, or
tendency to defend it could figure favorably in the development of private
patrol and restitution.
Our position, in short, is this: ideology and education are more important
to the movement for laissez faire than usually realized, not because of the
role of intellectuals as second-hand dealers in information, but because of the
amplifying effect that ideology has upon society through the entrepreneurial
creation of ideologically-infused social institutions. One conclusion that
emerges is this: a strategic goal of effective educational institutions should be
to target entrepreneurs in the dissemination of their ideology.
In a hopeful turn of events, the social status of entrepreneurs in North
America has grown over the last 50 years. Entrepreneurs now command a
higher social status than lawyers or doctors (Williams, 2008). And Richard
Floridas work suggests that creative professionals such as entrepreneurs,
engineers, and artists are increasingly important to thriving communities
(Florida, 2002; Florida, 2005). This is not to say that Postrel (1999) was right
to draw the battle lines between dynamists and stasists. But William Whytes
concern
11
was clearly met with vigor, and our culture now reveres
entrepreneurship and is much more entrepreneurial today than in 1956.
We close this section with a digression on the term spontaneous order.
A spontaneous order is often defined, as Adam Ferguson suggested, as a social

11
If we may paint with a broad brush, Whyte (1956) argued that his contemporaries
followed the rules to a fault, not exercising enough discretion and moral strength in the
face of conflict with unjust or improper organizational rules; and that increasingly, social
pressures were brought to bear to suppress individualism. For instance, in Chapter 19,
titled Love That System, Whyte conveys the results of an essay contest on The Caine
Mutiny, where only 1 in 16 students regarded Lieutenant Maryks mutiny to have been
morally right. Whyte writes, It is [Maryks] moral duty to act as he thinks best. Has this
become an anachronistic concept? Fifteen students against, to one for, constitute, let me
concede, very few straws in the wind.
8 LIBERTARIAN PAPERS 1, 12 (2009)
institution that is the result of human action, but not of human design.
12
In
other words, it is a social institution that is a happy accident. And in this
connection, the spontaneous order is often thought of as a social analogue to
biological evolution. But this analogy, whether held implicitly or explicitly,
has many flaws that can lead one astray from clear thinking about social
institutions. Firstly, the variations in social institutions are not random, but
planned by thinking individuals to have specific arrays of effects. In the
evolution of language, words are coined with forethought, carefully chosen
from existing words and traditions to denote something new, or to make a
distinction, and often chosen to evoke a specific connotation. This is true
even of street slang. In the development of markets, we see the various
business methods used: letters of credit, double-entry bookkeeping, joint
stock companies, insurance, rules of stock exchanges, and on those
exchanges institutions such as puts, swaps, futures, etc. Each of these, again,
was implemented to address particular concerns and its effects were
considered at length by its creators. Each micro-institution (a word, a letter of
credit) was designed and was not in any way spontaneous. Spontaneous
means occurring without any apparent external cause. Consider the terms
spontaneous combustion (of a human), spontaneous emission (of an
electron), spontaneous fission (of a nucleus), and spontaneous remission (of a
cancer).
Secondly, the decentralized nature of the development of social
institutions is often overstated by advocates of laissez faire. We sometimes
use spontaneous order as a codeword for decentralized planning: spontaneous
order versus central planning. But in the development of languages, there have
been but a handful of highly influential writers and speakers compared to the
billions who have used them over time.
13
The use of Hindo-Arabic numbers
for more efficient calculation on the entire continent of Europe can be traced
to a single man.
14
Despite the fact that in a famous essay Leonard Read
showed that the highly articulated modern division of labor suggests that not
one man on the planet knows how to make a pencil today, a single man,
Joseph Hardtmuth, invented the method of mixing low quality graphite with
clay as a binder and then established a pencil factory in Vienna which brought
low-cost pencils to the masses. The development of key social institutions

12
For a review of the scholarly tradition of the concept of spontaneous orders, see
Barry (1982) and Horwitz (2001). Horwitz, in particular, has authored a number of papers
that extends and defends Hayeks work on spontaneous order. We offer here a brief
sketch in defense of a social rationalist approach to institutions, but do not directly
engage this literature.
13
On the surprisingly planned nature of languages, see Yeager (1998) at p. 26.
14
Leonardo of Pisa, aka Fibonacci, published his Liber Abaci in 1202 at the age of
32.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 9
has not been massively decentralized, but merely decentralized. Institutional
histories are usually characterized by three elements: starting out as the
brainchild of one or a few men; slowly evolving and developing at the hands
of the many; punctuated periods of reassessment and rework by individual
minds or small groups, after which follows a reversion to slow evolution.
Thirdly, the notion that a social institution has unintended effects is
also sometimes overstated. Taking the case of money, one might imagine a
prehistoric man choosing to exchange his collection of berries for a cowrie
shell, making this exchange with the intention of later exchanging the cowrie
shell for some meat. This mans actions demonstrate and contain the basic
insight that exchanging less marketable commodities for more marketable
commodities will improve his trading position. And why did he choose to
trade for a cowrie shell? It was, perhaps, the most marketable commodity
available to him. But who are we to look back at this prehistoric man and
think to ourselves that our modern social institution of money was not really
his intention? We dont mean to say that our prehistoric man would foresee
everything that money has become. But within his ken, if our prehistoric man
conceived that benefits would accrue to the use of the most marketable
commodity as a medium of exchange, what has been the further innovation
and effect in the institution of money qua money other than the working out of
this idea and the reaping of all its benefits over these many years?
We readily concede that the development of money made possible
other social institutions, such as cost accounting, that were not foreseen by
our prehistoric man. But this is not an unintended consequence of the
institution of money. Instead, it is yet another rationally planned social
institution that was built upon other institutions. An institution such as the
English language is composed of a number of institutions, such as words,
rules of grammar, and spelling rules. Just because one institution builds upon
another does not make it spontaneous. It would be silly to claim that the
atom bomb was an unintended consequence of the Pythagorean Theorem. In
the same way, we challenge the use of the term spontaneous order, for it is not
so much an explanatory tool that promotes understanding as it is a codeword
for the magic of the market.
15

One final objection that might be raised is that complex institutions
should be considered as spontaneous orders. Consider an institution such as the
internet, which is a conglomeration of institutions: wires and fiber optic
cabling, servers, server software, routers, application software and the
computer languages in which they are written, monitors and pointing devices,

15
Which brings to mind the well-worn joke: How many libertarians does it take to
screw in a lightbulb? None, the market will take care of it.
10 LIBERTARIAN PAPERS 1, 12 (2009)
protocols and standards, emails, blogs, websites, etc. Such a wonderful beast
of an institution is best understood as a collection of incentive-compatible
human institutions, whose incentive compatibility is itself an element of the
design. There may be spontaneity of the human spirit and will in this collection
of creative works, but no spontaneous order. The entire enterprise is planned,
and is orderly precisely because it is planned to be so.
Further to our purposes here, if market anarchists are keen to build a
stateless order, then that is the work ahead. We salute the efforts of all
anarchists who have attempted to describe in detail the operation of a
modern stateless order, even as we critique them here. It is difficult work, and
it cannot be left to the market, for we have met the market, and it is us.
2. The Law Enforcement Paradigm and Vertical Integration
Two fundamental errors in the libertarian literature on the private
production of defense and law are often encountered. We shall call them the
law enforcement paradigm and the vertical integration assumption.
The law enforcement paradigm is the belief that violations of law in laissez
faire would and should be met with institutional force. While incentives to
obey the law are important, these incentives have not always taken the form
of institutional direct action against the offender. In fact, our knowledge of
historical free-market provision of defense and law argue the opposite. The
Kapauku Papuans of West New Guinea used ostracism as their main method
of ensuring obedience to the law; and the pre-Norman Anglo-Saxon, ancient
Icelandic, and ancient Irish systems of law all made those who refused to
obey the law into outlaws (Benson, 1990, p. 1526). Outlawry sometimes
led to blood feuds and certainly exposed those not obedient to the law to
violation of person and property; but, importantly, the taking of person or
property for either punishment or restitution was not institutionalized.
Instead, obedience to the law was incentivized. Leoni further informs us:
The compulsory enforcement of judicial decisions is a comparatively
late development of the law-making processAs a matter of fact, the
enforcement of a decision reached on a fundamentally theoretical basis
(i.e., finding which of the parties is right according to some recognizable
standards) was for a long time deemed incompatible with any
enforcement of that decision through some kind of coercive
intervention against the losing party. This explains why, for instance, in
the old Greek judicial procedure, the fulfillment of judicial decisions was
left to the partiesand why in the whole classical world kings and other
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 11
military chiefs used to put aside the emblems of their power when
requested by some parties to decide a case.
16
[Leoni, 1991, p. 185]
With all this historical precedent, we should be careful not to apply
modern prejudices about enforcement to an envisioned future laissez faire in
the production of defense and law. Moreover, market-based incentives to
obey the law are improved, ceteris paribus, by the intensification of the
division of labor, the lessening of the technological problems associated with
identification of persons, and the improvement of the technological
capabilities of recording and retrieving informationdevelopments which
have advanced considerably since the historical quasi-market anarchies
mentioned above. Further, pure restitution and incentivizing, but not
enforcing, obedience to law must be considered in the context of the entire
structure of production of defense and law, considering costs of
enforcement, costs of enforcement error, costs of enforcement abuse, and
maintenance of the social legitimacy of the entire system. The indispensible
reference for this is Barnett (1998). Not to confuse our position with his:
Barnett writes in favor of using force to collect restitution (ibid., pp. 17681).
We disagree. Law enforcement should be a dying institution, appropriate only
for emergent or standing threats to life and property (one could argue that
this is not properly called law enforcement, but production of defense).
The vertical integration assumption is to suppose that in laissez faire the
production of adjudication and the production of patrol/security should be
or would be unified in a single business. This makes little business sense.
There would be a fundamental conflict of interest if mediators and arbitrators
were employees of the security company. They would be agents of parties in
the dispute, and therefore have the color of bias, and the fact of
interestedness. Beyond that, the work of mediation and arbitration, on the
one hand, and patrol-and-restitution on the other, are completely different
types of activity. There is no material reason to combine them into a
conglomerated business. Arbitration and mediation arms would be public
relations albatrosses to a security company. Furthermore, appeals to
decreased costs of adjudication for intra-firm disputes seem to be without
substance. If there is a dispute over fact or law, an adjudicator must be hired,
his time paid for, and whether the parties to the dispute are subscribers to a
common firm is of no real consequence. In modern America, arbitration
clauses in contracts cut costs for firms by avoiding socialist courts and
embracing free-market courts, not from any special, previously agreed-to
intra-firm procedures or codes.

16
Perhaps this also explains why the development of the law of plea bargaining is
relatively recent. The extreme example of this is the Alford plea in the US, vintage 1970.
12 LIBERTARIAN PAPERS 1, 12 (2009)
It appears that the first author to display one of these errors
17
was
David Friedman:
I come home one night and find my television set missing. I
immediately call my protection agency, Tannahelp Inc., to report the
theft. They send an agent. He checks the automatic camera which
Tannahelp, as part of their service, installed in my living room and
discovers a picture of one Joe Bock lugging the television set out the
door. The Tannahelp agent contacts Joe, informs him that Tannahelp
has reason to believe he is in possession of my television set, and
suggests he return it, along with an extra ten dollars to pay for
Tannahelps time and trouble in locating Joe. Joe replies that he has
never seen my television set in his life and tells the Tannahelp agent to
go to hell.
The agent points out that until Tannahelp is convinced there has been a
mistake, he must proceed on the assumption that the television set is my
property. Six Tannahelp employees, all large and energetic, will be at
Joes door next morning to collect the set. Joe, in response, informs the
agent that he also has a protection agency, Dawn Defense, and that his
contract with them undoubtedly requires them to protect him if six
goons try to break into his house and steal his television set.
The stage seems set for a nice little war

[Friedman, 1973]
For the rest of his consideration of the topic (pp. 11620), Friedman
argues for the vertical integration of adjudication and defense, by appealing to
the supposedly high transactions costs that two firms face when a subscriber
from one firm is accused of violating the rights of a subscriber from another
firm.
18
This argument makes no sense. If A accuses B of a rights violation, a
proper arbitration must take place. There is no shortcut. A man must be
hired to arbitrate, regardless of whether A and B are subscribed to the same
private security company. Indeed, even if we concede that A and B are
subscribed to companies that have preestablished agreements regarding a
body of law, this reduces the adjudication to an issue of fact. But adjudicating
over an issue of fact is the main work of adjudicationthats the heavy

17
It could be argued that the law enforcement paradigm is on display in Tannehill
and Tannehill (1970), in chapter 10 titled Rectification of Injustice. However, their
account is more tentative and speculative than prescriptive and definitive. For instance,
they write: Assuming the aggressor could not make immediate payment of his entire
debt, the method used to collect it would depend on the amount involved, the nature of
the aggression, the aggressors past record and present attitude, and any other pertinent
variables. Several approaches suggest themselves... (p. 101).
18
Friedman also seems to assume that replevin is a preferred remedy over trover,
which is odd for something as common and non-essential as a television when, as
Friedman claims, a nice little war is at stake.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 13
lifting. Friedmans appeal to consider the case of vertically integrated anti-
capital-punishment and pro-capital-punishment agencies is a bizarre and
entertaining mental exercise, but in no way relevant or persuasive on this
point.
Prior to Friedman, Rothbard assumed vertical integration, but never
revisited the assumption:
One common objection to the feasibility of marketable protection (its
desirability is not the problem here) runs as follows: Suppose that Jones
subscribes to Defense Agency X and Smith subscribes to Defense
Agency Y. (We will assume for convenience that the defense agency
includes a police force and a court or courts, although in practice these
two functions might well be performed by separate firms.) [Rothbard,
1970]
Nozick (1974) makes both errors, laying the groundwork for his
immaculate conception of the state. First, he claims that groups of
individuals may form mutual-protection associations: all will answer the call
of any member for defense or for the enforcement of his rights. (Nozick,
1974, p. 12) And by enforcement, it is clear that he means the law enforcement
paradigm.
19
Nozick recognizes there are possible counterarguments to vertical
integration, but neither engages the arguments nor addresses the historical
social reality that we have mentioned above, stating without argument, But,
for obvious reasons, there will be strong tendencies for the above-mentioned
functions to converge in the same agent or agency. (Nozick, 1974, p. 14)

Benson corrects these errors somewhat by eschewing the law enforcement
paradigm,
20
but still suggests there is more than just assumption in the vertical
integration assumption:
The contract with a particular protection firm could include an
arbitration clause so that disputes between clients of that firm can be
settled internally. Similar contractual arrangements will probably arise
between different communities and their protection agencies. [Benson,
1990, p. 359]
Barnett (1998) clearly overturns the notion of vertically integrating
patrol, restitution, and adjudication through a fictional account of a merger
between a protective services company and an adjudication company that

19
Nozick (1974), p. 13: turning over to a private protective agency all functions of
detection, apprehension, judicial determination of guilt, punishment, and exaction of
compensation. [emphasis added]
20
See Benson (1990), p. 367-374.
14 LIBERTARIAN PAPERS 1, 12 (2009)
turns into a mafia.
21
However, he embraces the law enforcement paradigm
22
by
making the tendentious leap from perpetrators owe to coerce perpetrators in the
single sentence: Because victims would have an enforceable right to restitution,
unlike today, agencies acting on the victims behalf would be justified in using
force to incarcerate criminals who could not be entrusted to make restitution
on their own. (Barnett, 1998, p. 177) The institutionalization of coercion in
lieu of incentivization is glossed over by Barnetta comparison of the two
alternatives and their advantages and disadvantages is not even undertaken,
even though such considerations are the bread and butter of his book.
To conclude this section: In our conception of the production of law
and defense in laissez faire, adjudication is not vertically integrated with
defense, defense companies use force only to defend life and property in
emergency situations, and there is no coercive institution that enforces
restitution payments. Rather, institutions are put in place to incentivize the
payment of restitution. Guillory and Sitren (2007) discusses one of these
proposed institutions at length: Notices Of Refusal To Arbitrate.
Would there be prisons for standing threats to liberty (serial murderers,
serial rapists, serial child molesters, etc.)? Yes. But before those are created, it
is likely that safe zones would expand and multiply. Safe zones are
geographic areas with controlled access ranging in size from single buildings
to entire neighborhoods or towns.
3. Search and Arrest
In the US, the general police powers of warranted searches and arrest
upon probable cause are powerful tools for criminal investigations and crime
prevention that often figure prominently in both cinema and the minds of
police. This status quo unduly influences conceptions of free market
protection of life, liberty, and property.
The private patrol company need not have significant arrest powers.
The arrest of someone caught in the act of a tort is the only arrest power
envisioned. Usually, this arrest would be effected for loss prevention and to
identify the perpetrator so that restitution could later be sought. In rare cases,
forcible bodily ejection would be necessary in cases of trespass (this is not
arrest, but it is the application of force to a persons body).

21
Barnett (1998), Chapter 14, in the section titled The Problem with TopCops and
Justice, Inc.: A Worst-Case Scenario.
22
See Barnett (1998), Chapter 9, in the section titled Using Force to Collect
Restitution, p. 176-180.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 15
The private patrol company need not have any power of warranted
searches. From a deontological perspective, even a warranted search is a
violation of right. The utilitarian question is: what is the difference in cost
between having the power of warranted searches and not having them. The
practical difference is the effect that a difference in clearance rates
23
of crimes
has on restitution collected from perpetrators. We have quantified the pure
premia for restitution of property crimes to homeowners in the US: about
$158/year per household.
24
State police clearance rates for property crimes
are in the range of 13% to 26%, depending upon the crime category. So, if
the lack of warranted searches means that clearance rates are half the current
rates (clearance rates drop from about 20% to about 10%), the cost of such a
huge change would be on the order of $16/year per household.
25
To be clear:
our utterly unfair and conservative assumption is that state police have twice
the clearance rate of private patrol and restitution companies due solely to
their power to compel warranted searches, which results in the $16
difference. Assuming this, the question now becomes this: for $16/year in
cost savings, would you, the consumer of patrol and restitution services, be
willing to sign a contract to submit your household to warranted searches? Or
more properly, can you imagine a company successfully selling the general
public on such a proposition? The question answers itself.
But what about the high-severity, high-clearance crimes of murder and
rape? Assuming that a murder is a $1 million restitution event,
26
and rape is a
$50,000 restitution event,
27
the total restitution owed by perpetrators is equal

23
By clearance of a crime, we mean that a suspect is identified and sufficient
evidence exists to warrant a credible demand for restitution from the suspect. We borrow
this term from the FBIs Uniform Crime Reports, where clearance of a crime means that
at least one person is arrested, charged with the commission of the offense, and is turned
over to the court for prosecution (whether following arrest, court summons, or police
notice).
24
See Guillory, Blakeney, and Alston (2007). This value does not include any
coverage modifications. That is, this is the total amount of restitution owed, regardless of
whether it is paid by perpetrators or the SPR company.
25
That is, $158 x 90% paid from insurance versus $158 x 80% paid from insurance,
with the respective balances being paid by the perpetrators.
26
This is the correct order of magnitude, and perhaps a little high. If the murder is of
a breadwinner earning $40,000 annually (the approximate average annual US salary) and
due to the murder will lose 35 years of income, the present value of that income stream at
an interest rate of 8% is $466,183. We remind the reader that only direct damages are
being considered under this business model.
27
This number is the proper order of magnitude, or perhaps high by an order of
magnitude, since only direct damages are being considered under this business model.
Cohen (1988) tabulated average direct monetary losses from rapes from the National
Crime Victimization Survey, which includes medical care, days of lost work, and other
immediate direct damages, and then calculated average pain and suffering from a survey
16 LIBERTARIAN PAPERS 1, 12 (2009)
to a pure premium of $61/year per household. Clearance rates by state police
are about 65% for murders and 45% for rapes. Again, using our assumption
of halved clearance rates, the differential cost to the consumer is an additional
$15/year per household.
These are hardly in the range of sums of money that people would
make major commitments, such as consenting to warranted searches, to
avoid having to pay. Warranted searches did not come about as crime-
fighting measures.
Historical Review
Warranted searches in the US are conducted within the bounds of the
Fourth Amendment to the US Constitution. This amendment, part of the US
Bill of Rights, was undoubtedly modeled upon clause 10 of the brilliant
Virginia Declaration of Rights of George Mason. The Virginia Declaration of
Rights was drafted during the US Revolutionary War, and was drawn from
revolutionary documents from English history: Lockes Second Treatise,
written during the Exclusion Crisis; the English Bill of Rights, written at the
conclusion of the Glorious Revolution and being a document once signed, its
signatories were offered the throne of England; and Magna Carta, whose
history we summarize below. Clause 10 of the Virginia Declaration was
written in response to the Writs of Assistance legalized by the Townshend
Acts, which gave tax collectors broad rights to search for smuggled goods.
Arrests in the US are conducted within the bounds of the legal doctrine
of probable cause, which is also part of the Fourth Amendment. However,
violations of those bounds are checked, in part, by the doctrine of habeas
corpus. Article 1, Section 9 of the US Constitution uses the modern
understanding of habeas corpus, which came from The Habeas Corpus Act
of 1679, which was an attempt to restrict James IIs feared exercise of
arbitrary power. Of course, habeas corpus has a longer pedigree, back to
Magna Carta.
28
Magna Carta itself was foisted upon an unwilling King John,

of jury awards, adjusting the awards based upon estimates of severity distributions.
Cohens figures were $4,617 in direct average losses and $43,561 in pain and suffering.
Cohen and Miller (1998) used a mental health care provider survey to estimate mental
healthcare costs for rape. This amounted to a median of $2,579 of lifetime mental
healthcare costs per victim.
28
Article 29 of Magna Carta reads, No freeman shall be captured or imprisoned or
disseised or outlawed or exiled or in any way destroyed, nor will we go against him or
send against him, except by the lawful judgment of his peers or by the law of the land.
(Brooks, 1993, emphasis added). Because of this wording, writs of habeas corpus in
England were written on behalf of the sovereign to the court. This traditional form
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 17
and his repudiation of the document after having signed it under duress
launched the First Barons War, during which King John died of dysentery.
Henry III, Johns son, was quickly crowned and his regents saw to it that
Magna Carta was signed and issued by him, but without the most monarch-
neutering clauses.
These few historical points underscore the fact that the modern state
police tools of warranted searches and arrest are the vestigial remnants of a
long struggle against arbitrary state powers, not crime-fighting techniques
introduced ab initio. Attempts to justify them post hoc are simply that: post-
hoc justifications. And, as we have demonstrated, the case for their use, even
where contractually allowed, does not seem that strong.
4. Does Free-Market Adjudication Provide Justice?
A puzzle that has been suggested by some libertarians is this:
I have discussed institutions, not results. That is why I have used the
term anarcho-capitalist, which describes the institutions, rather than
libertarian. Whether these institutions will produce a libertarian
societya society in which each person is free to do as he like with
himself and his property as long as he does not use either to initiate
force against othersremains to be proven. (Friedman, 1973, p. 127,
part of chapter 31, Is anarcho-capitalism libertarian?)
Friedmans analysis which follows this passage is confused, since he
assumes the vertical integration of adjudication and patrol. We will not
critique his argument here. To restate the question more broadly: will free-
market adjudication result in just decisions?
29

Leoni (1961) provides a theoretical framework on which we can build
an answer to this question. We offer a sketch of his theory.
30
In a market,
economic operators regard prices to be ultimate data upon which they base
their calculations and actions, fully realizing that these are flexible to some
extent, but quite fixed for a particular transaction. By analogy, Leoni suggests
that legal operators regard legal norms to be the ultimate data upon which
they base their actions, fully realizing these are flexible to some extent, but
fixed for a particular adjudication. Extending the analogy, Leoni notes that

remains in the US, where writs of habeas corpus are ex parte even though the petitioner
is usually the prisoner.
29
Here, we regard justice to mean what libertarians take it to mean, fully recognizing
that even libertarians dispute particulars. We follow de Jasay (2002) in noting that justice
is simply justice, and not any other social concept.
30
See Leoni (1961), specifically the chapter The Law as Individual Claim, p. 189-
203.
18 LIBERTARIAN PAPERS 1, 12 (2009)
the economist does not regard prices to be fixed at all, but subject to
immutable rules of distribution acting on contingent facts. Likewise, the
proper legal theorist does not regard legal norms to be fixed, but subject to
immutable rules of argumentation acting on contingent facts of cases within
particular cultural contexts. Indeed, the direction of causation of these social
elements is often misapprehended. It is the offers to buy and sell in the
market that causes prices (the norms of the market) to settle into relative
fixity; they are not fixed before agents enter the market, though it appears
that way to most economic agents. Likewise, it is the advancing of legal
claims in an adjudicative setting and hearing the arguments on both sides that
determines the outcomes of proceedings; and the outcomes of many
proceedings thereby establish legal norms. It is not the case that legal norms
are fixed before legal agents advance their arguments, although it appears that
way to lawyers who learn legal norms in law school and then apply them to
cases to guess how judges will rule on cases.
But does this mean that legal norms could be anything at all? No, and a
number of libertarian theorists have explained why.
As Hoppe pointed out, by rationally advancing your claim against
another, you are implicitly claiming that your claim is rationally defensible to
a greater extent than your opponents: any ethical proposal, as well as any
other proposition, must be assumed to claim that it is capable of being
validated by propositional or argumentative means. (Hoppe 1993, Ch. 10)
All who make claims; or who criticize torts, crimes, legislation, laws, and
judicial decisionsin short, all who debate legal normsimplicitly hold that
there is a standard against which these decisions are to be measured.
Narveson agrees, applying the insight in the context of egalitarianism:
Here I need merely remind the reader that we are talking about arguments
for equality, as distinct from sheer assertions of it. Appeals to
intuitionthat the commitment to equality is moral bedrock, as I
have heard it saidmust, on the face of it, count in the latter category.
As a device for supporting equality, this invites the response that,
unfortunately, my moral bedrock might be something quite
incompatible with the proponents: say, that equality is a snare and a
delusion. Strange bedrockfellows! So where would we go from there? If
its anywhere, its going to have to be either back to arguments, or to
non-rational or irrational activity, such as politicswaving flags, Bosnia,
etc. [Narveson 2002, p. 51]
But if the continual clash of individual claims results in rational
adjudications, to what legal norms are we led? Narveson takes the case of
murder:
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 19
It is absurd to say that whats wrong with murder is that I dont like it.
The obvious response is: So? The reason it is the obvious response is
that if we are out to regulate the behavior of people in general by
suggesting a rule for their deliberate action, then the plausibility of our
effort is zero if it turns out that all my proposal has going for it is that I
want it or would like it. Who, indeed, cares? Until I can explain why
others should care, my proposal will be irrelevant to them. And if it isnt
directed to them, were wasting their time. [Ibid.]
Hoppe and Narveson have much in common in their arguments about
arguments. Narveson notes that the appeal to universal norms is necessary
from the first. That is, if A and B come together to adjudicate a dispute in a
milieu devoid of background legal norms, to what do they address their
arguments? Hoppe writes: Quite commonly it has been observed that
argumentation implies that a proposition claims universal acceptability, or,
should it be a norm proposal, that it is universalizable. (Hoppe 1989, Ch.
7). Narveson quite simply notes: No generalization, no morals. (Narveson
1988). But this is not the only rule. Narveson again:
When in general will a proposal [for a norm] be reasonable for a certain
set of people? The very general answer to this is that it will be so when
it serves each persons interest well enough, and at least as well as any
other obviously available proposal. That is the general thesis of
contractarianism in morals. [Ibid.]
We favor Narvesons approach, so we will outline his contractarian
program a bit more.
On the right view of the foundations of morality, there are no moral
bedrocks. Everything is arguable, and arguable by reference to
considerations that have to be meaningful to those concerned,
antecedently to the moral theory put forwardnamely, their various
values and preferences, whatever they may be, plus a variety of
empirically manageable factual claims. [Ibid.]
It is the grounding of morality in fact that makes moral values
fundamentally different than mere preferences. But what are these facts?
One of Narvesons favorite facts is Hobbess disturbing (but true) claim
that almost every person, no matter how weak, has enough strength to kill
the strongest among us, and also the power to make others lives quite
miserable. He goes on to show that the Prisoners Dilemma is the
paradigmatic situation to which morals addresses itself. With the relevant
facts (including valuing ones life, and ones life projects) distilled into the
Prisoners Dilemma, he shows that rational actors will choose to cooperate
instead of defect, and encourage others to cooperate. This is the
20 LIBERTARIAN PAPERS 1, 12 (2009)
contractarian case for morals. Since the very term contractarian is a bit
confusing to some, a clarification is needed:
The general idea of [contractarianism] is that the principles of morality
are (or should be) those principles for directing everyones conduct
which it is reasonable for everyone to accept. They are the rules that
everyone has good reason for wanting everyone to act on, and thus to
internalize in himself or herself, and thus to reinforce in the case of
everyone.

Contractarianism can be made to seem arbitrary and silly: consider, for
instance, the suggestion that long, long ago our remote ancestors made
this deal, see, and from that day to this everyone has had to go along
with it!

The problem is that morality is obviously not the result of a literal
contract: and, indeed, it cannot be Clearly, the sense in which
morality is founded upon or due to or represents an agreement is
going to have to be less straightforward than that. [Ibid.]
Narveson explains further:
[Contractarian morals are] the output of a course of
deliberation[chosen to have] the best chance of realizing values
actually held by the agent. Those values, of course, need not be and in
the first instance cannot be moral values. Morality is an output, and
what makes it rational is the same as what makes any action or decision
rational: it best fills the bill specified by ones general set of values,
whatever they are. [Ibid.]
This subjectivism of values is important to Narveson, and he regards it
as a defining element of the liberal tradition:
the liberal must justify principles, policies, and institutions, to any
person affected by them, by showing that person they are for his or her
good as seen by that person Each person is regarded as being the
ultimate authority on what is good for himself. [Ibid.]
But where will all of these arguments be advanced? Indeed, where will
the complementary arguments of Hoppe (1993), Kinsella (2008), and others
(Kinsella 1996) be advanced? We argue that two of the important venues for
these arguments, or at least practical applications of them, are mediations and
arbitrations.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 21
Section Conclusion
Narvesons vision of norms is well-adapted to considering the question
of this section. The arbiter of a dispute is led by contractarian logic to choose
minimally-constraining norms to apply to disputes. One way to consider
contractarianism is as a philosophical theory of how free-market adjudication
of norms results in the minimal legal norms of libertarian ethics.
This theory of adjudication is confirmed in history. All of the historical
free or nearly free markets in law (Roman law, common law, Law Merchant,
etc.) have resulted in libertarian-leaning decisions and legal norms.
5. Development of the SPR ModelSocial Strength and Derived
Demand
In the US, home security is currently provided by a multiplicity of do-it-
yourself passive and active deterrents (safes, locks, fences, cameras, dogs,
guns, etc.), a complex of governmentally-supplied patrols, and two main
business models: monitoring and security guard services.
Monitoring
Information on monitoring businesses below comes from IBISWorld
Industry Report 56162, Security Systems Services in the US, 6 March 2006,
IBISWorld, Inc.
The firms engaged in sales, installation, repair, and monitoring services
of burglar and fire alarms and locking systems serve governmental,
commercial, and residential sectors. The estimated industry revenue in 2005
was US$15.281 billion. It has experienced tremendous growth since at least
2000 with real annual growth rates of 68%. Expected nominal growth is 4
5% annually through 2010.
Research conducted by the Security Institute of America indicated that
in mid-2000, 17.8 percent of residential households had a home security
system, 38.8% of households with $100K+ income had one, and 26.1% of
households with $7590K income had one. Using residence valuation, the
numbers were: 11% for values <$100K, 21.2% for values $100200K, 27.8%
for values $200300K, and 40.1% for values >$300K.
Three-quarters of firms in the industry are small businesses, with 9 or
fewer employees. This level of concentration is not expected to change over
time. However, there are several major players in the industry:
22 LIBERTARIAN PAPERS 1, 12 (2009)
Firm Market Share Based in
Tyco (ADT) 22.6% Boca Raton, FL
Siemens 15.6% Buffalo Grove, IL
Protection One 2.2% Topeka, KS
Brinks 1.9% Richmond, VA

With regard to monitoring companies, it is important to know that the
residential market segment comprises only 15% of their business, and that
the major drivers in the rest of the business are technology as a replacement
for labor in the security of governmental and corporate clients. Indeed, the
resumes of the board of directors of Tyco as presented in its 2005 Annual
Report show that they have careers from companies such as Motorola,
Verizon, Rohm and Haas, du Pont, and MicroWarehouse. The organization
is dedicated to technological solutions, so we suggest that employing patrol
labor is the farthest thing from their minds, and not part of either their core
competency or their business strategy.
Security Guard Services
Information on security guard businesses below comes from BizMiner
Reports for category 128-381.0105: US Market Research Report (Dec 2007),
Industry Financial Profile, Sales Class $1$499,999 (Jan 2008), Industry
Financial Profile, Sales Class $2.5$4.99 million (Jan 2008), Small Business
Financial Profile (Jan 2008), and Startup Expense & Cash Flow Profile (Dec
2007). Additional information is from first-hand discussions with security
company principals.
Firms engaged in security guard services serve governmental,
commercial, and residential sectors. The estimated industry revenue in 2006
was US$13.340 billion, comparable in size to the monitoring market.
The average firm size is small. About 60% of firms have fewer than 25
employees, and less than 15% of firms have more than 100 employees. About
60% have gross revenue under $200k, and only about 4% have gross revenue
exceeding $5 million. The work is mostly contract work with businesses and
governmental entities, and some contract work with residential homeowners
associations. Most of the large contracts are annual and renewable. Smaller
contracts are month-to-month or quarterly. But all of the contracts are
indirect. By that, we mean that the ultimate consumer of patrol/guard
services is one or more stages of production away from the security guard
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 23
firm. Visitors to a bar are protected by security guards hired by the bar
owner. Likewise malls, supermarkets, sporting events, etc.
Contracted residential patrol is almost exclusively purchased by
homeowner associations. Because the fate of such a contract rests on the
opinions of a few, while the number of residents served by the contract is
much larger, the security companys incentives are to manage the perceptions
of these few people while the actual provision of security to the many is a
secondary concern (a classic agency problem). Further, with a contract that is
annually renewable, a large portion of the security companys business rides
on a single contract. This pressure, combined with no objective measurement
of patrol effectiveness, creates a business environment where price is the
chief means of competition among firms.
The Subscription Patrol and Restitution Alternative
We now consider the implementation of the SPR business model as a
replacement for the current state of affairs. This business model removes the
agency of the homeowner association while adding objective metrics for
subscribers to gauge effectiveness and need for the patrol. The surety element
aligns the economic interests of the security company and the subscriber. The
monthly reports, all-in-one service, and surety component are internalized
benefits of the total service, leaving some externalized benefits of
extraordinary patrol. Price discrimination of premium services between
subscribers and non-subscribers will provide additional internalization of
benefits.
While the subscription model has higher transaction costs, it gives
more stability to the revenue of the firm. The SPR business model demands a
variety of tasks from the patrol officer (front line sales force, security patrol,
investigation, adjusting, and participation in mediation/arbitration). For this
reason, the wages of the SPR officer will be the highest in the industry
higher even than most government police. Further, in the SPR business
model, there will be a path to business ownership for the SPR officer which
is totally lacking in the government sector. This additional prospect should
draw an even more ambitious and talented pool into the SPR sector.
If the business model is successfulif it is adopted by a significant
percentage of the population in the USit will become the most significant
business in the provision of home security, twice as large as the existing
residential market for monitoring and guard services combined. Consider
Table 1, which is a prediction of SPR business sector statistics predicated
upon the assumptions listed. While it is immediately obvious that the
establishment of a successful SPR business sector will create derived demand
24 LIBERTARIAN PAPERS 1, 12 (2009)
for mediators and arbitrators, and they will undoubtedly require trade
associations, there is more to the structure of production. Patrolmen will be
educated for the SPR business sector, and lawyers will be educated for the
sector. We expect special degree programs to develop. Professors of criminal
justice and law will be required to turn out new graduates every year.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 25
Table 1. Prediction of SPR Business Sector Statistics
at Full Penetration
281,421,906 US Population, 2000 (US Census)
105,480,101 Households in US, 2000 (US Census)
2.67 Average household size
21,096,020 Number subscribing to SPR service
$8,860,328,484 Gross Revenue of Business Sector
42,192 Number of patrol employees
4,791,489 Number of crime events per year
479,149 Number of mediations per year
479,149 Number of arbitrations per year
1843 Number of mediators
1843 Number of arbitrators
3686 Number of mediators + arbitrators
1,688 patrol graduates per year
111 law graduates per year
169 criminal justice professors
11 law professors
Assumptions
20% percent subscribing (similar to home
monitoring)
$35.00 monthly fee per household
500 subscriber to patrolman ratio
8513 Total crime rate per 100,000 people
(UCR+NCVS)
20% raw clearance rate (weighted UCR)
50% percent mediations of torts cleared
260 mediations per year per mediator
260 arbitrations per year per arbitrator
4.0% patrol graduates per year per patrolman
3.0%
law graduates per year per (mediator or
arbitrator)
10 patrol grads per year per criminal justice prof
10 law grads per year per law prof
Data for Comparison / Reference
648,000 Number of police and sheriffs deputies, 2006
(BLS)
$14,389,000,000
Estimated Gross Revenue of Security Systems
Services in US, 2006 (IBISWorld)
$2,158,350,000
Residential portion of Gross Revenue of
Monitoring Services
$13,340,000,000
Estimated Gross Revenue of Security Guard
Companies in US, 2007 (BizMiner)
$2,001,000,000
Residential portion of Gross Revenue of
Security Guard Services (assume 15%)
$4,159,350,000
Sum of gross revenues of residential
Monitoring and Guard Services
26 LIBERTARIAN PAPERS 1, 12 (2009)
We have stated that the SPR firms will issue monthly reports to
subscribers. These monthly newsletters will contain not only statistics and
maps, but also articles on security and advertisements. The articles will
undoubtedly have an anarchist ideological slant,
31
since we have defended
above that ideology is a competitive advantage. The obvious source of
advertisements are the mediators and arbitrators, who will advertise not only
for victim-offender mediations and arbitrations, but for mediations and
arbitrations of all types. Thus does the subscriber pay for the privilege to be
constantly reminded that non-state dispute resolution is quick, reliable,
convenient, and affordable.
The arbitrators will quickly find that mediation casework is the ideal
reference to appeal to community standards of appropriate restitution, as has
been the case in historical free-market systems of law. And so, mediators and
arbitrators will develop a trade association for the compilation, archiving, and
publishing of mediation casework as well as restatements of restitution
agreements to inform arbitration. This work should also draw substantial
interest from the academic law community. These free market prices may
even be referenced by government courts, just as the USSR Pricing Boards
used to reference prices of goods in Europe and the US.
The SPR firm will have an economic interest in preventing crime. To
that end, part of its community policing efforts will be in the discovery of at-
risk conditions, such as job loss, alcoholism, drug abuse, family discord or
divorce, teen pregnancy, animal cruelty, etc. Of course, the SPR firm will
consume academic studies by criminologists and likely participate in
criminological studies to understand the relative importance of these, and
other, at-risk conditions. The SPR firm will ameliorate these at-risk
conditions by contacting local non-profit organizations
32
dedicated to and
competent in addressing these at-risk conditions. The special value that the
SPR firm has in this regard is to connect the community service organization
to those in need.
There are two chief problems for charities. First, raising funds for their
cause. Second, finding the people to whom to minister. Both of these are
communication problems that the SPR firm is well-positioned to help solve.
We have already mentioned the role of finding at-risk conditions in the

31
To be clear, we mean that the SPR company will exhort the subscriber to be
responsible for the security of his family and possessions, suggesting that the SPR
company is only a single means to this end; the SPR company will never advocate statism;
and will gladly suggest useful but politically incorrect means of defense to subscribers:
purchasing and learning to use guns, statistics on the effectiveness of resisting attackers,
etc.
32
But no tax-funded organizations, of course.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 27
subscription area. The obvious follow-through is for the SPR firm to report
upon the discovery of the at-risk condition, to report upon the help the local
charity is rendering, and to broaden this report as an article in the monthly
newsletter highlighting the totality of the work of the local charity.
The SPR firm, by connecting the community to charitable
organizations and playing an indispensable role in coordinating the actions of
the community to spot at-risk conditions and treat them, will build a huge
capital of social power. For a moment, we will digress into the social thought
of Robert Nisbet.
Nisbet is perhaps best known as the author of The Quest for Community
(Nisbet, 1953). The book was republished in 1962 under the title Community
and Power.
33
While the strict libertarian might choose to array the market
against power,
34
Nisbet prefers to array community and its necessary
constitutive elements against power. His 1962 edition contains in the preface
a useful restate[ment of] the essential argument of the book,
35
which we
will review. Nisbet embraces the theme of alienation, by which he means that
the individual does not feel a part of the social order and has lost interest
in being part of it. This is accompanied by a state of mind that regards the
social order as remote, incomprehensible, or fraudulent; beyond real hope
or desire; inviting apathy, boredom, or even hostility. What causes such
alienation? Nisbet says it is in part alienation from the past, and in part
alienation from physical place and nature, but alienation from place and
property turns out to be, at bottom, estrangement from close personal ties:
that the important link is the social bond, the community. Here, Nisbet
specifically has in mind the individuals relation to social function and social
authority. Authority is not power, but is rooted in the statuses, functions,
and allegiances which are the components of any association. Authority is
indistinguishable from organization and it is based ultimately upon the
consent of those under it. Nisbet says of authority:
Apart from authority, as even the great anarchists have insisted, there
can be no freedom, no individuality. What the anarchists said, and this is
the splendid essence of anarchism and the link between it and such
conservatives as Tocqueville and Acton, is, first, that there must be
many authorities in society, and, second, that authority must be closely

33
Nisbet states in the preface to the 1962 edition, ...the new title is the one I should
have chosen in the first place. It is briefer and, more important, exactly relevant to what
the book is about.
34
Consider Spencers regime of contract versus the regime of authority or
Rothbards book Power and Market.
35
Quotations by Nisbet are drawn from the Preface to Community and Power
unless otherwise noted.
28 LIBERTARIAN PAPERS 1, 12 (2009)
united to objectives and functions which command the response and
talents of its members. Freedom is to be found in the interstices of
authority; it is nourished by competition among authorities.
Nisbet covers the problems of power in ways with which libertarians
are familiar. Nisbet says, Community is the product of people working
together on problems, of autonomous and collective fulfillment of internal
objectives, and of the experience of living under codes of authority which
have been set in large degree by the persons involved. One of the problems
of power is that the center of control is taken from the people concerned.
Where power is external or centralized, where it relieves groups of persons
of the trouble of making important decisionsit is difficult for a true
community to develop. Community, says Nisbet, thrives on self-help
and everything that removes a group from the performance of or
involvement in its own government can hardly help but weaken the sense of
community. So, what is Nisbets prescription?
First, we must not be afraid of utopianism.
36
With the complexity of
modern life, central planning (but not necessarily government planning) is
inevitable. Nisbet says, Utopianism, after all, is social planning, and
planning, as I have stressedis indispensable in the kind of world that
technology, democracy, and high population bring. But this planning should
not be planning for masses of individuals which is both a hopeless
exercise and the substance of tyranny and the path to annihilation of
personality. Instead, the planning he calls for is a new laissez faire
37
that
will hold fast to the ends of autonomy and freedom of choice while
creat[ing] conditions within which autonomous groups may prosper. He
seems to be calling to action those who are called today social entrepreneurs:
What we need at the present time is the knowledge and administrative skill
to create a laissez faire in which the basic unit will be the social group.
Expanding on this theme:
we are in need of the creation, or re-creation, of intermediate
associations, of groups and communities which lie intermediate to
individual and state and whose autonomy from either state or the
political mentality is some measure of the allegiance they command in
their members lives.

But the overriding objective of a new policy of laissez faire would be
that of stimulating social inventions. [Nisbet 1975, p. 27879]

36
A conservative said that?
37
Ibid., p. 278
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 29
These themes bring to mind the social processes of localizing and
empowering communities to become responsible for their security against
criminals. And it is these social processes that are set in motion by an SPR
firm, and the authority of coordination of these functions will grow naturally
from its carrying out of this function.
This is no idle speculation. Indeed, empowering communities with
communication and building social relations is exactly the community-based
integration program that has been deployed successfully by companies such
as Critical Intervention Services for many years. Critical Intervention Services
has developed an entire methodology of transforming a high-crime
community into a low-crime community through a phased approach using a
number of tactics, and proven this methodology with a track record of
success. All of the tactics are predicated on empowering residents of the
community to play a part in reducing crime and exerting rightful authority to
drive out the criminal element.
38

The vision we offer is this: the SPR business model is launched, it is
accepted by Americans, and it grows. With it, grows an entire structure of
production of security provision that is laced with ideological anarchism. The
best officers are drawn into the SPR business sector. There is both derived
demand that is created by the SPR firms, and also demand for other
institutions which are a result of the SPR firms work: increased arbitrations,
mediations, and better funded and more effective charities that are connected
to the local populations to which they minister. Eventually, even the cinema
will dramatize the production of defense and law under the SPR business
model, for the production of defense and law is of intense interest to people.
Once this essential societal function is returned to the community, a
fundamental shift in culture can and will begin.
6. Crisis and Liberty
What are the limits of action of the SPR firm? In its initial launch, does
it cover thefts? Certainly. Rapes? This is uncertain. Murder? Almost certainly
not. Does it have a chance to increase its scope of services over time? Is there
a chance that it can outcompete the state in the provision of defense services?

38
See Poulin and Nemeth (2005), especially chapters 5-8, covering such topics as
integration versus observation; deterring crime; detecting issues; defusing issues;
defending the community; reclamation of the community environment; networking;
anchoring; notice and purpose; officer demeanor and attitude; avoidance of responsibility;
arrogance and interaction; failure to listen; shock tactics; high-shock strategies in high-
crime communities; low-intensity shock strategies; and crime and environmental design.
30 LIBERTARIAN PAPERS 1, 12 (2009)
The slow rise of authority for the SPR business sector that is traced
above will undoubtedly allow the SPR business sector to increase its socially
legitimated role. But what about crises? Are they threats or opportunities to
the SPR business sector?
Rothbard optimistically wrote that crises presented opportunities for
laissez faire:
For radical social changea change to a different social systemto
take place, there must be what is called a crisis situation. There must,
in short, be a breakdown of the existing system which calls forth a
general search for alternative solutions. When such a widespread search
for social alternatives takes place, then activists of a dissenting
movement must be available to supply that radical alternative, to relate
the crisis to the inherent defects of the system itself, and to point out
how the alternative system would solve the existing crisis and prevent
any similar breakdowns in the future. Hopefully, the dissenters would
also have provided a track record of predicting and warning against the
crisis that now exists. [Rothbard 1973, p. 392]
Furthermore, one of the characteristics of crisis situations is that even
the ruling elites begin to weaken their support for the system. Because of the
crisis, even part of the State begins to lose its zest and enthusiasm for rule. In
short, a failure of nerve by segments of the State occurs. Thus, in these
situations of breakdown, even members of the ruling elite may convert to an
alternative system or, at the least, may lose their enthusiasm for the existing
one.
Thus the historian Lawrence Stone stresses, as a requirement for radical
change, a decay in the will of the ruling elite. The elite may lose its
manipulative skill, or its military superiority, or its self-confidence or its
cohesion; it may become estranged from the non-elite, or overwhelmed by a
financial crisis; it may be incompetent, or weak or brutal. (Rothbard 1973, p.
320)
Higgs, on the other hand, wrote that it is almost inevitable that
government will expand in scope and power during crises. We will treat his
thought at length, because we regard it as an important challenge.
RECAPITULATION: WHY THE RATCHET?
To a large extent Big Government has emerged in twentieth-century
America during relatively brief episodes of great social crisis, either war
or depression. One therefore needs a theory to explain: (1) why
government expands the scope of its effective authority over economic
decision-making with the onset of a crisis; and (2) why the retrenchment
that follows the crisis is incomplete, leaving government permanently
Bigger than it would have been had the crisis never occurred. These are
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 31
essential elements of a theory that views the growth of government not
as a mere trend phenomenon but as a path-dependent historical process.
The expansion phase of the ratchet reflects the decisions of a quasi-
autonomous government responding to an insistent but ill-defined
public demand that the government do something about a crisis.
Whatever the policy adopted, however, costs must be borne by people
outside the government. The greater are the costs, the less willing is the
public to tolerate them. When people are burdened too heavily, their
resistance jeopardizes not only the policy but, in a normally operating
representative democracy, the government itself. Anticipating such
reactions, the government takes steps to conceal the true costs of its
policies. Most importantly, it substitutes a (cost-hiding) command-and-
control system of resource allocation for the (cost-revealing) market
system and its utterly visible measuring rod of money.
The incompleteness of the retrenchment phase of the ratchet is usually
explained as the product of the politics of entrenched bureaucrats, their
clients, and connected politiciansthe so-called iron triangles. The
explanation is valid but incomplete. It accounts for only a part of Big
Government. It can and should be supplemented by a (partial) theory of
ideological change.
This theory pertains to only one aspect of the ideological climate,
namely, the beliefs of elites (and presumably of the masses whose beliefs
attach to some extent as dependent variables) about the appropriate
scope of effective governmental authority over economic decision-
making. Crises lead to permanent shifts in the tolerable limits of the true
size of government. Crises break down ideological resistance to Big
Government by (1) providing occasions for the improvement of
command-and-control mechanisms, which renders them less
obnoxious; (2) discrediting the conservatives domino theory, with its
implication that all civil and political liberties will be lost in a mixed
economy; and (3) creating opportunities for many people both within
and without the government to do well for themselves and hence to
look more favorably on the new order. In all these respectsstrongly
reinforced, of course, by ceaseless outpourings of official propaganda
ideological evolution displays a path-dependency of its own, the salient
feature of which is the crisis-induced reduction of resistance to Big
Government. [Higgs 1987, p. 73]
Even when faced with the specific example of a flourishing SPR
business sector, Higgs is skeptical:
I do not think that we can expect a substantial effect [from an SPR
business sector] on the ratchet effect that I have written about. This
effect arises from the trigger of a threat to public security so pervasive
and threatening that even successfully functioning patrol and restitution
32 LIBERTARIAN PAPERS 1, 12 (2009)
services would probably not be seen as adequate means of dealing with
it.
You write that [p]eople are not generally ideological, but practical. If an
institution can solve problems, or make a good case that it can, then it
will be embraced by people, and given more social power. I believe, on
the contrary, that people are profoundly ideological; indeed, their (often
unarticulated or even unconscious) ideological predisposition to regard
the government as their savior serves as a precondition for the crisis
ratchet phenomenon to operateas demonstrated by the fact that it
operated hardly at all in the nineteenth-century United States, when the
dominant ideology entailed distrust and even fear of government and a
disposition to confine it to a narrow channel. We have had ratchets
since World War I because Progressivism took hold prior to that war
and has remained more or less dominant since then.
Even if we could somehow get past that obstacle, it seems unlikely that
people would look to patrol and restitution services, even in expanded
forms, to deal with societal threats such as attacks by a foreign state,
potentially wide-scale terrorism, rampant civil disorder, or economic
collapse. The rulers will always rush to assure the populace that they are
dealing with such threats, and, if need be, they will crush any competing
providers of security that might already exist or potentially arise. People
under the sway of Progressive ideology will always be taken in by such
assurances; fearful, bewildered people are always easy pickings for
power-hungry rulersits the trick that works every time.
Conceivably, if many, many voluntary measuresof which your patrol
and restitution service might well be onewere to gain places in the
social order, then their successful performance might eventually cause a
deterioration in the grip of Progressive ideology on the populace as
people came to understand that they do not need the state to take care
of them and indeed that they can do so better without it. However, so
long as the ideological predispositions remain anything like what they
are now in this country and nearly all others, there is little hope for
avoiding another spurt of government growth whenever any serious
societal crisis comes along (or is made to come along).
39

We first approach Higgss argument by citing the concession he makes
to the proliferation of voluntary measures, and their collective effect on the
ideology of the populace. Although Higgs is pessimistic about SPRs chances
for success, he admits that, in principle, a flourishing private sector
including private defense servicescould reverse the ratchet effect and
accelerate the decline of the state. It is exactly this flowering of Nisbettian
mediating institutions that we foresee as being fomented by the SPR business

39
Private communication, Robert Higgs to Gil Guillory, 30 March 2006. Quoted
with permission.
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 33
sector. The SPR business sector will tend to minimize or even neutralize the
ratchet effect by encouraging additional demand for arbitration and
mediation services, by forging relationships with SPR customers, and by
undermining the belief that only government can provide protection services.
As the SPR business sector faces and resolves crises, its power to oppose the
ratchet will increase.
One type of crisis to which the SPR business sector will be particularly
well-suited is a natural disaster that results in an evacuation of the majority of
the population: a hurricane, a flood, a tsunami. The SPR business sector will
have in place mutual aid agreements
40
so that SPR officers from a large
geographic area will, in time of crisis, deploy to a region of high need for a
short period of time. There would be no need for people to look to SPR
firms to provide orderthe SPR firms would simply do it in accordance with
their contractual duties. This is not mere speculation. New Orleans Private
Patrol proudly proclaims on its website,
41
NOPP stayed on the job through
Katrina and Rita (we actually made the payroll on the Wednesday after the
storm), and have since made an aggressive comeback. We are back up to our
pre-Katrina service hours, and have 85% of our personnel slots filledI
doubt any other security company can make that claim! Viewed in the
context of their business model, this is indeed praiseworthy. By contrast, the
tax-funded New Orleans Police were unable to account for 240 of the 1,450-
member force during or after Katrina (AP Wire, 2005). With an SPR business
sector fully operating, the number of security personnel deployed in such a
crisis will be impressively large and its impact will not go unnoticed.
Of course, Higgs might agree that the private sector has the potential to
reverse the ratchet, while still insisting that, under prevailing ideological
conditions, the ratchet effect can be expected to operate wherever crises are
so pervasive and threatening that the people do not see private enterprise as a
viable solution. Indeed, this seems to be the essence of Higgss argument.
The problem, however, is that this perspective appears to rely on circular
reasoning. It is like saying, Private enterprise cannot counteract the ratchet
effect because the ratchet effect is triggered by crises that people believe
private enterprise cannot handle. What cries out for explanation, however, is
why people believe some crises cannot be resolved by private enterprise.
Higgss answer to this question is that people have largely absorbed a
Progressivist ideology according to which the only appropriate and effective
response to certain types of crises is government action. It is certainly true
that this ideology is prevalent. Nevertheless, Higgs seems to regard this

40
On the contractual networks into which private law enforcement providers can be
expected to organize themselves, see Hoppe (1998).
41
See www.nopplpp.com Accessed 18 February 2008.
34 LIBERTARIAN PAPERS 1, 12 (2009)
ideology as virtually insurmountable. There is no reason why it must be so.
Indeed, this fatalistic view produces a paradox by suggesting that, while a
society under the influence of Progressivism can face any number of crises
that trigger an expansion of government control, Progressivism itself can
never face a crisisthe faith of its ideological adherents can never be shaken.
Against this view, we maintain that the SPR business sector, once established,
can precipitate a crisis of confidence within Progressivism; a robust private
sector committed to carrying out functions sometimes thought to be the
exclusive domain of government will help loosen Progressivisms grip and
thereby help counteract the ratchet effect. If the ratchet is caused by crises
that people think cannot be solved by the private sector, then a private sector
that demonstrates its ability to handle precisely those crises should help
diminish the publics faith in the necessity for government action. The result
could very well be a reverse ratchet effect that diminishes the scope of
government influence over private decision-making and economic activity.
But the strongest argument we can make against Higgs in this context
is that we know what the next crisis in American history will be, and Higgss
argument does not address it. We argue that the next crisis in American
history is on the horizon, and is uncharacteristically predictable. David
Walker, former
42
Comptroller General of the United States,
43
has spoken
repeatedly about the fiscal irresponsibility of the US Federal Government,
and the actuarial time bomb due to explode presently. The population wave
of baby boomers started to become eligible for Social Security in January
2008 (age 62 for those born in 1946), and this leading edge of seniors will
become eligible for Medicare in January 2011. As Walker explains, when this
happens it will result in a tsunami of spending that unlike most tsunamis will
never recede. Its a permanent change in the economic, social, and
demographic picture that, unless we end up changing course, could swamp
the ship of state. (Georgia State University, 2007). The magnitude of this
crisis is virtually impossible to overstate. Social Security, Medicare and
Medicaid already constitute 40 percent of the federal budget (Bixby 2008).
Projections of increasing longevities and health care costs put unfunded
government liabilities at about $8 trillion, which is approximately $400,000
per household in additional liabilities (over and above the national debt and
current levels of taxation) in the US (Walker 2007). This fiscal pressure will

42
He has resigned his position effective 12 March 2008 to become CEO of the
newly-formed Peter G. Peterson Foundation.
43
See his biographies at
http://en.wikipedia.org/wiki/David_M._Walker_%28U.S._Comptroller_General%2
9 and www.gao.gov/cghome/dwbiog.html
THE ROLE OF SUBSCRIPTION-BASED PATROL AND RESTITUTION 35
be mirrored in many states of the union, which also have unfunded pension
and healthcare programs.
In this sort of crisis, which will unfold and continually worsen over the
next 20 years, we expect federal and state governments to resort to all
possible means to close the fiscal gap: increased taxation, inflation,
government borrowing, means-testing of benefits, rationing of benefits,
reduction of benefits, partial repudiation of debt, and old-fashioned cutting
of government programs. Associated with this will be increased incentives to
operate in the black market, to avoid taxes, and to lie to obtain previously-
promised benefits. The natural result will be crackdowns on tax cheats,
underground economies, and welfare frauds; and the use of government
corruption exposs as scapegoats for fiscal woes. Indeed, this crisis has
already started, with Governor Schwarzenegger proposing to release tens of
thousands of prisoners (San Francisco Chronicle, 2008).
44

In this sort of fiscal crisis, several elements of Higgss ratchet theory
ring hollow. For governments can no longer engage in cost-hiding resource
allocation. Criminals will be released from prisons, patrol budgets will be
reduced, other tax-funded services will be reduced, and people will be
compelled to look to civil society for relief. The fiscal pressure will be too
strong for the ideology of the free lunch to countervail. Indeed, it will be as
Rothbard describesa period when even the ruling elites begin to weaken
their support for the system. With the worsening fiscal pressures over time,
the ideology of those who enter government will change. Consider this as a
Sowellian ideological progression. Sowell (1996) describes how the ideology
of the first occupants of positions in a government bureau is more idealistic
and the later occupants ideology and demeanor more like the civil service we
know from the DMV. For a long time, those who enter government will not
be able to enact grand schemes to spend vast quantities of tax money. Theirs
will be a rearguard action to preserve government institutions such as Social
Security and Medicare.
Over this time, the SPR business sector will grow and flourish while the
tax-funded police sector is starved for funds. We can expect tax-funded
police to lose their zest and enthusiasm for rule, when a much brighter future
awaits them in the market provision of their chosen profession.

44
This article reads, in part: Gov. Arnold Schwarzenegger, acknowledging that
California faces tough economic times, proposed an austere budget Thursday for the next
fiscal year that would take billions of dollars from public schools, shut down four dozen
state parks and release tens of thousands of prisoners to close a projected $14.5 billion
deficit.
36 LIBERTARIAN PAPERS 1, 12 (2009)
Ideology influences history just as well as history influences ideology.
Indeed, Raico (2004) says people tend to derive their political views from
what they think they know about history. Just what ideological impact will
this 20-year crisis have on the populace? We suggest that it will show people
that there are limits to what the state can do; that the state is not omnipotent,
not omni-benevolent. A salutary effect, no doubt. But when combined with
the continuing propaganda by anarchists, and especially by an SPR business
sector that has the ear of fully 1/5 of households in a monthly newsletter, it is
hard to agree that state propaganda will somehow be stronger when voiced
by an institution that cannot make good on its many promises.
Indeed, it is very likely that the fiscal crisis of Social Security and
Medicare will allow many families to reclaim intergenerational obligations
where the state fails to meet needs, and charities will rise to the occasion of
meeting needs where family is not strong enough. We dont see a gloomy
future for Americans over the next 2 decades. We see a period of increasing
civil society.
In sum, we think the future for liberty is bright. The ratchet has met its
match in the fiscal crisis. The influence that Subscription Patrol and
Restitution will have on ideology and institutions is extremely positive.
Subscription Patrol and Restitution has the potential to be a market solution
to the social problem of internal security that is so comprehensive and
robust, that when combined with extant private solutions, could grow into a
role that completely obviates the need for state agents in this field. If this
occurs, then other institutional entrepreneurs will learn from these
developments and establish heretofore unimagined institutions that build
upon such success, and there is hope that market-provided defense and law
will be eventually realized.
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Gustave de Molinari
Translation by
J. Huston McCulloch
The Production
of Security
This essay was originally published as
De la production de la scurit, in Journal des
Economistes (February 1849): 27790.
This translation by was originally published as
Gustave de Molinari, The Production of Security,
trans. J. Huston McCulloch, Occasional Papers
Series #2 , Richard M. Ebeling, ed. (New York:
The Center for Libertarian Studies, May 1977).
2009 by the Ludwig von Mises Institute
and published under the Creative Commons
Attribution License 3.0.
http://creativecommons.org/licenses/by/3.0/
Ludwig von Mises Institute
518 West Magnolia Avenue
Auburn, Alabama 36832
www.mises.org
ISBN: 978-1-933550-57-2
The interests of the consumer
of any commodity whatsoever
should always prevail over
the interests of the producer.
Gustave de Molinari
C O N T E N T S
Preface by Murray N. Rothbard . . . . . . 9
The Production of Security . . . . . . . . 15
The Natural Order of Society . . . . . . . 17
Competition in Security? . . . . . . . . . 22
Security an Exception? . . . . . . . . . . 25
The Alternatives . . . . . . . . . . . . . 27
Monopoly and Communism . . . . . . . 29
The Monopolization and
Collectivization of the Security Industry . . 33
Government and Society . . . . . . . . . 41
The Divine Right of Kings
and Majorities . . . . . . . . . . . . . . 43
The Regime of Terror . . . . . . . . . . . 51
The Free Market for Security . . . . . . . 53
7
The Production of Security 9
Preface
By Murray N. Rothbard (1977)
N
ever has laissez-faire thought been
as dominant as it was among
French economists, beginning
with J.B. Say in the early nineteenth cen-
tury, down through Says more advanced
followers Charles Comte and Charles
Dunoyer and to the early years of the
twentieth century. For nearly a century,
the laissez-faire economists controlled the
professional economic society, the Societe
dEconomie Politique and its journal, the
Journal des Economistes, as well as numer-
ous other journals and university posts.
And yet, few of these economists were
translated into English, and virtually
none are known to English or Ameri-
can scholarsthe sole exception being
9
10 The Production of Security
Frdric Bastiat, not the most profound
of the group. The entire illustrious group
remains unstudied and unsung.
The most extreme and consistent, as
well as the longest-lived and most prolic
of the French laissez-faire economists was
the Belgian-born Gustave de Molinari
(18191912), who edited the Journal des
Economistes for several decades. The initial
article of the young Molinari, here trans-
lated for the rst time as The Production
of Security, was the first presentation
anywhere in human history of what is
now called anarcho-capitalism or free
market anarchism. Molinari did not use
the terminology, and probably would
have balked at the name. In contrast to
all previous individualistic and near-anar-
chistic thinkers, such as La Botie, Hodg-
skin or the young Fichte, Molinari did
not base the brunt of his argument on a
moral opposition to the State. While an
ardent individualist, Molinari grounded
his argument on free-market, laissez-faire
The Production of Security 11
economics, and proceeded logically to ask
the question: If the free market can and
should supply all other goods and services,
why not also the services of protection?
During the same year, 1849, Molinari
expanded his radically new theory into
a book, Les Soires de la Rue Saint-Lazare,
a series of fictional dialogues between
three people: the Conservative (advo-
cate of high tariffs and state monopoly
privileges), the Socialist, and the Econo-
mist (himself ). The nal dialogue elabo-
rated further on his theory of free-mar-
ket protective services. Four decades
later, in his Les Lois Naturelles de lEconomie
Politique (1887), Molinari was still a rm
believer in privately competitive police
companies, public works companies, and
defense companies. Unfortunately, in his
only work to be translated into English,
La Societ Future (The Society of Tomorrow,
New York: G.P. Putnams Sons, 1904),
Molinari had partially retreated to an
advocacy of a single monopoly private
12 The Production of Security
defense and protection company, rather
than allowing free competition.
It is instructive to note the storm of
contention that Molinaris article and his
Soires brought about in the laissez-faire
stalwarts of French economics. A meet-
ing of the Societe dEconomie Politique
in 1849 was devoted to Molinaris daring
new book, the Soires. Charles Coque-
lin opined that justice needs a supreme
authority, and that no competition in
any area can exist without the supreme
authority of the State. In a similarly
unsupported and a priori fulmination,
Frdric Bastiat declared that justice and
security can only be guaranteed by force,
and that force can only be the attribute of
a supreme power, the State. Neither
commentator bothered to engage in a cri-
tique of Molinaris arguments.
Only Charles Dunoyer did so, complain-
ing that Molinari had been carried away by
the illusions of logic, and maintaining
that competition between governmental
The Production of Security 13
companies is chimerical, because it leads to
violent battles. Dunoyer, instead, chose to
rely on the competition of political par-
ties within representative government
hardly a satisfactory libertarian solution
to the problem of social conict! He also
opined that it was most prudent to leave
force in the hands of the State, where civ-
ilization has put itthis is from one of
the great founders of the conquest theory
of the State!
Unfortunately, this critical issue was
barely treated in the meeting, since the
discussion largely centered on Dunoy-
ers and the other economists criticizing
Molinari for going too far in attacking
all uses of eminent domain by the State.
(See Journal des Economistes XXIV (Octo-
ber 15, 1849: 31516.)
With this publication of Professor
McCullochs translation of Molinaris
original article, let us hope that Molinari
will now come to the attention of schol-
ars and translators.
14 The Production of Security
The Production of Security 15
The Production
of Security
1
Gustave de Molinari
T
here are two ways of consider-
ing society. According to some,
the development of human asso-
ciations is not subject to providential,
unchangeable laws. Rather, these associ-
ations, having originally been organized
in a purely articial manner by primeval
1
Although this article may appear utopian in its conclusions,
we nevertheless believe that we should publish it in order to
attract the attention of economists and journalists to a ques-
tion which has hitherto been treated in only a desultory man-
ner and which should, nevertheless, in our day and age, be
approached with greater precision. So many people exag-
gerate the nature and prerogatives of government that it has
become useful to formulate strictly the boundaries outside of
which the intervention of authority becomes anarchical and
tyrannical rather than protective and protable. [Note of the
editor-in-chief of the Journal des Economistes, 1849.]
15
16 The Production of Security
legislators, can later be modified or
remade by other legislators, in step with
the progress of social science. In this sys-
tem the government plays a preeminent
role, because it is upon it, the custodian
of the principle of authority, that the daily
task of modifying and remaking society
devolves.
According to others, on the contrary,
society is a purely natural fact. Like the
earth on which it stands, society moves in
accordance with general, preexisting laws.
In this system, there is no such thing,
strictly speaking, as social science; there is
only economic science, which studies the
natural organism of society and shows
how this organism functions.
We propose to examine, within the lat-
ter system, the function and natural orga-
nization of government.
The Production of Security 17
The Natural Order
of Society
I
n order to dene and delimit the func-
tion of government, it is rst necessary
to investigate the essence and object
of society itself. What natural impulse do
men obey when they combine into soci-
ety? They are obeying the impulse, or, to
speak more exactly, the instinct of socia-
bility. The human race is essentially socia-
ble. Like beavers and the higher animal
species in general, men have an instinctive
inclination to live in society.
Why did this instinct come into being?
Man experiences a multitude of
needs, on whose satisfaction his happi-
ness depends, and whose non-satisfac-
tion entails suering. Alone and isolated,
he could only provide in an incomplete,
insufficient manner for these incessant
17
18 The Production of Security
needs. The instinct of sociability brings
him together with similar persons, and
drives him into communication with
them. Therefore, impelled by the self-
interest of the individuals thus brought
together, a certain division of labor is estab-
lished, necessarily followed by exchanges.
In brief, we see an organization emerge,
by means of which man can more com-
pletely satisfy his needs than he could liv-
ing in isolation.
This natural organization is called
society.
The object of society is there-
fore the most complete satisfaction of
mans needs. The division of labor and
exchange are the means by which this is
accomplished.
Among the needs of man, there is one
particular type which plays an immense
role in the history of humanity, namely
the need for security.
What is this need?
The Production of Security 19
It is in ones self-interest to procure
security at the lowest price possible.
Whether they live in isolation or in
society, men are, above all, interested in
preserving their existence and the fruits
of their labor. If the sense of justice were
universally prevalent on earth; if, conse-
quently, each man confined himself to
laboring and exchanging the fruits of
his labor, without wishing to take away,
by violence or fraud, the fruits of other
mens labor; if everyone had, in one word,
an instinctive horror of any act harmful
to another person, it is certain that secu-
rity would exist naturally on earth, and
that no articial institution would be nec-
essary to establish it. Unfortunately this is
not the way things are. The sense of jus-
tice seems to be the perquisite of only a
few eminent and exceptional tempera-
ments. Among the inferior races, it exists
only in a rudimentary state. Hence the
innumerable criminal attempts, ever since
the beginning of the world, since the days
20 The Production of Security
of Cain and Abel, against the lives and
property of individuals.
Hence also the creation of establish-
ments whose object is to guarantee to
everyone the peaceful possession of his
person and his goods.
These establishments were called
governments.
Everywhere, even among the least
enlightened tribes, one encounters a
government, so universal and urgent
is the need for security provided by
government.
Everywhere, men resign themselves to
the most extreme sacrices rather than do
without government and hence security,
without realizing that in so doing, they
misjudge their alternatives.
Suppose that a man found his person
and his means of survival incessantly
menaced; wouldnt his rst and constant
preoccupation be to protect himself from
the dangers that surround him? This
The Production of Security 21
preoccupation, these efforts, this labor,
would necessarily absorb the greater por-
tion of his time, as well as the most ener-
getic and active faculties of his intelli-
gence. In consequence, he could only
devote insucient and uncertain eorts,
and his divided attention, to the satisfac-
tion of his other needs.
Even though this man might be asked
to surrender a very considerable portion
of his time and of his labor to someone
who takes it upon himself to guarantee
the peaceful possession of his person and
his goods, wouldnt it be to his advantage
to conclude this bargain?
Still, it would obviously be no less in
his self-interest to procure his security at
the lowest price possible.
22 The Production of Security
Competition in Security
I
f there is one well-established truth in
political economy, it is this:
That in all cases, for all commodities
that serve to provide for the tangible or
intangible needs of the consumer, it is in
the consumers best interest that labor
and trade remain free, because the free-
dom of labor and of trade have as their
necessary and permanent result the
maximum reduction of price.
And this:
That the interests of the consumer
of any commodity whatsoever should
always prevail over the interests of the
producer.
Now in pursuing these principles, one
arrives at this rigorous conclusion:
That the production of security
should, in the interests of the consumers
22
The Production of Security 23
of this intangible commodity, remain
subject to the law of free competition.
Whence it follows:
That no government should have
the right to prevent another govern-
ment from going into competition with
it, or to require consumers of secu-
rity to come exclusively to it for this
commodity.
Nevertheless, I must admit that, up
until the present, one recoiled before this
rigorous implication of the principle of
free competition.
One economist who has done as much
as anyone to extend the application of
the principle of liberty, Charles Dunoyer,
thinks that the functions of government
will never be able to fall into the domain
of private activity.
2
Now here is a citation of a clear and
obvious exception to the principle of free
competition.
2
In his remarkable book De la libert du travail (On the Free-
dom of Labor), Vol. III, p. 253. (Published by Guillaumin.)
24 The Production of Security
This exception is all the more remark-
able for being unique.
Undoubtedly, one can nd economists
who establish more numerous exceptions
to this principle; but we may emphatically
arm that these are not pure economists.
True economists are generally agreed, on
the one hand, that the government should
restrict itself to guaranteeing the security
of its citizens, and on the other hand, that
the freedom of labor and of trade should
otherwise be whole and absolute.
But why should there be an exception
relative to security? What special reason
is there that the production of security
cannot be relegated to free competition?
Why should it be subjected to a dierent
principle and organized according to a dif-
ferent system?
On this point, the masters of the science
are silent, and Dunoyer, who has clearly
noted this exception, does not investigate
the grounds on which it is based.
The Production of Security 25
Security an Exception?
W
e are consequently led to ask
ourselves whether his exception
is well founded, in the eyes of
the economist.
It offends reason to believe that a
well-established natural law can admit
of exceptions. A natural law must hold
everywhere and always, or be invalid. I
cannot believe, for example, that the uni-
versal law of gravitation, which governs
the physical world, is ever suspended in
any instance or at any point of the uni-
verse. Now I consider economic laws
comparable to natural laws, and I have
just as much faith in the principle of the
division of labor as I have in the univer-
sal law of gravitation. I believe that while
these principles can be disturbed, they
admit of no exceptions.
25
26 The Production of Security
But, if this is the case, the production
of security should not be removed from
the jurisdiction of free competition; and
if it is removed, society as a whole suers
a loss.
Either this is logical and true, or else
the principles on which economic science
is based are invalid.
The Production of Security 27
The Alternatives
I
t thus has been demonstrated a priori,
to those of us who have faith in the
principles of economic science, that
the exception indicated above is not justi-
ed, and that the production of security,
like anything else, should be subject to
the law of free competition.
Once we have acquired this conviction,
what remains for us to do? It remains for
us to investigate how it has come about
that the production of security has not
been subjected to the law of free compe-
tition, but rather has been subjected to
dierent principles.
What are those principles?
Those of monopoly and communism.
In the entire world, there is not a sin-
gle establishment of the security industry
27
28 The Production of Security
that is not based on monopoly or on
communism.
In this connection, we add, in passing,
a simple remark.
Political economy has disapproved
equally of monopoly and communism in
the various branches of human activity,
wherever it has found them. Is it not then
strange and unreasonable that it accepts
them in the security industry?
The Production of Security 29
Monopoly
and Communism
L
et us now examine how it is that
all known governments have
either been subjected to the law of
monopoly, or else organized according to
the communistic principle.
First let us investigate what is under-
stood by the words monopoly and
communism.
It is an observable truth that the more
urgent and necessary are mans needs, the
greater will be the sacrifices he will be
willing to endure in order to satisfy them.
Now, there are some things that are found
abundantly in nature, and whose produc-
tion does not require a great expendi-
ture of labor, but which, since they satisfy
these urgent and necessary wants, can
consequently acquire an exchange value
29
30 The Production of Security
all out of proportion with their natural
value. Take salt for example. Suppose that
a man or a group of men succeed in hav-
ing the exclusive production and sale of
salt assigned to themselves. It is appar-
ent that this man or group could raise the
price of this commodity well above its
value, well above the price it would have
under a regime of free competition.
One will then say that this man or this
group possesses a monopoly, and that the
price of salt is a monopoly price.
But it is obvious that the consumers
will not consent freely to paying the abu-
sive monopoly surtax. It will be necessary
to compel them to pay it, and in order to
compel them, the employment of force
will be necessary.
Every monopoly necessarily rests on
force.
When the monopolists are no longer
as strong as the consumers they exploit,
what happens?
The Production of Security 31
In every instance, the monopoly nally
disappears either violently or as the out-
come of an amicable transaction. What is
it replaced with?
If the roused and insurgent consumers
secure the means of production of the salt
industry, in all probability they will con-
scate this industry for their own prot,
and their rst thought will be, not to rel-
egate it to free competition, but rather
to exploit it, in common, for their own
account. They will then name a director
or a directive committee to operate the
saltworks, to whom they will allocate the
funds necessary to defray the costs of salt
production. Then, since the experience of
the past will have made them suspicious
and distrustful, since they will be afraid
that the director named by them will seize
production for his own benet, and sim-
ply reconstitute by open or hidden means
the old monopoly for his own profit,
they will elect delegates, representatives
entrusted with appropriating the funds
32 The Production of Security
necessary for production, with watching
over their use, and with making sure that
the salt produced is equally distributed to
those entitled to it. The production of salt
will be organized in this manner.
This form of the organization of pro-
duction has been named communism.
When this organization is applied to a
single commodity, the communism is said
to be partial.
When it is applied to all commodities,
the communism is said to be complete.
But whether communism is partial or
complete, political economy is no more
tolerant of it than it is of monopoly, of
which it is merely an extension.
The Production of Security 33
The Monopolization and
Collectivization of the
Security Industry
I
snt what has just been said about
salt applicable to security? Isnt this
the history of all monarchies and all
republics?
Everywhere, the production of security
began by being organized as a monopoly,
and everywhere, nowadays, it tends to be
organized communistically.
Here is why.
Among the tangible and intangible com-
modities necessary to man, none, with the
possible exception of wheat, is more indis-
pensable, and therefore none can support
quite so large a monopoly duty.
Nor i s any qui te so prone to
monopolization.
33
34 The Production of Security
What, indeed, is the situation of men
who need security? Weakness. What is
the situation of those who undertake to
provide them with this necessary secu-
rity? Strength. If it were otherwise, if the
consumers of security were stronger than
the producers, they obviously would dis-
pense with their assistance.
Now, if the producers of security are
originally stronger than the consumers,
wont it be easy for the former to impose
a monopoly on the latter?
Everywhere, when societies originate,
we see the strongest, most warlike races
seizing the exclusive government of the
society. Everywhere we see these races
seizing a monopoly on security within
certain more or less extensive boundaries,
depending on their number and strength.
And, this monopoly being, by its
very nature, extraordinarily profitable,
everywhere we see the races invested
with the monopoly on security devoting
themselves to bitter struggles, in order to
The Production of Security 35
add to the extent of their market, the num-
ber of their forced consumers, and hence
the amount of their gains.
War has been the necessary and inev-
itable consequence of the establishment
of a monopoly on security.
Another inevitable consequence has
been that this monopoly has engendered
all other monopolies.
When they saw the situation of the
monopolizers of security, the producers
of other commodities could not help but
notice that nothing in the world is more
advantageous than monopoly. They, in
turn, were consequently tempted to add
to the gains from their own industry by
the same process. But what did they
require in order to monopolize, to the
detriment of the consumers, the com-
modity they produced? They required
force. However, they did not possess the
force necessary to constrain the consum-
ers in question. What did they do? They
borrowed it, for a consideration, from
36 The Production of Security
those who had it. They petitioned and
obtained, at the price of an agreed upon
fee, the exclusive privilege of carrying on
their industry within certain determined
boundaries. Since the fees for these priv-
ileges brought the producers of secu-
rity a goodly sum of money, the world
was soon covered with monopolies.
Labor and trade were everywhere shack-
led, enchained, and the condition of the
masses remained as miserable as possible.
Nevertheless, after long centuries
of suffering, as enlightenment spread
through the world little by little, the
masses who had been smothered under
this nexus of privileges began to rebel
against the privileged, and to demand
liberty, that is to say, the suppression of
monopolies.
This process took many forms. What
happened in England, for example?
Originally, the race which governed the
country and which was militarily orga-
nized (the aristocracy), having at its head
The Production of Security 37
a hereditary leader (the king), and an
equally hereditary administrative coun-
cil (the House of Lords), set the price of
security, which it had monopolized, at
whatever rate it pleased. There was no
negotiation between the producers of
security and the consumers. This was
the rule of absolutism. But as time passed,
the consumers, having become aware
of their numbers and strength, arose
against the purely arbitrary regime, and
they obtained the right to negotiate with
the producers over the price of the com-
modity. For this purpose, they sent dele-
gates to the House of Commons to discuss
the level of taxes, the price of security.
They were thus able to improve their lot
somewhat. Nevertheless, the producers
of security had a direct say in the naming
of the members of the House of Com-
mons, so that debate was not entirely
open, and the price of the commodity
remained above its natural value.
38 The Production of Security
One day the exploited consumers rose
against the producers and dispossessed
them of their industry. They then under-
took to carry on this industry by them-
selves and chose for this purpose a direc-
tor of operations assisted by a Council.
Thus communism replaced monopoly.
But the scheme did not work, and twenty
years later, primitive monopoly was re-
established. Only this time the monopo-
lists were wise enough not to restore the
rule of absolutism; they accepted free
debate over taxes, being careful, all the
while, incessantly to corrupt the delegates
of the opposition party. They gave these
delegates control over various posts in the
administration of security, and they even
went so far as to allow the most influ-
ential into the bosom of their superior
Council. Nothing could have been more
clever than this behavior. Nevertheless,
the consumers of security nally became
aware of these abuses, and demanded
the reform of Parliament. This long-con-
tested reform was finally achieved, and
The Production of Security 39
since that time, the consumers have won
a signicant lightening of their burdens.
In France, the monopoly on secu-
rity, after having similarly undergone fre-
quent vicissitudes and various modica-
tions, has just been overthrown for the
second time.
3
As once happened in Eng-
land, monopoly for the benefit of one
caste, and then in the name of a certain
class of society, was finally replaced by
communal production. The consumers
as a whole, behaving like shareholders,
named a director responsible for supervis-
ing the actions of the director and of his
administration.
We will content ourselves with making
one simple observation on the subject of
this new regime.
Just as the monopoly on security log-
ically had to spawn universal monopoly,
3
Translators note: De Molinari was writing one year after
the revolutions of 1848.
40 The Production of Security
so communistic security must logically
spawn universal communism.
In reality, we have a choice of two
things:
Either communistic production is supe-
rior to free production, or it is not.
If it is, then it must be for all things, not
just for security.
If not, progress requires that it be
replaced by free production.
Complete communism or complete
liberty: that is the alternative!
The Production of Security 41
Government and Society
B
ut is it conceivable that the produc-
tion of security could be organized
other than as a monopoly or com-
munistically? Could it conceivably be rel-
egated to free competition?
The response to this question on the
part of political writers is unanimous: No.
Why? We will tell you why.
Because these writers, who are con-
cerned especially with governments,
know nothing about society. They regard
it as an articial fabrication, and believe
that the mission of government is to
modify and remake it constantly.
Now in order to modify or remake soci-
ety, it is necessary to be empowered with
an authority superior to that of the vari-
ous individuals of which it is composed.
41
42 The Production of Security
Monopolistic governments claim to
have obtained from God himself this
authority which gives them the right to
modify or remake society according to
their fancy, and to dispose of persons and
property however they please. Commu-
nistic governments appeal to human rea-
son, as manifested in the majority of the
sovereign people.
But do monopolistic governments and
communistic governments truly possess
this superior, irresistible authority? Do
they in reality have a higher authority
than that which a free government could
have? This is what we must investigate.
The Production of Security 43
The Divine Right
of Kings and Majorities
I
f it were true that society were not
naturally organized, if it were true that
the laws which govern its motion were
to be constantly modified or remade,
the legislators would necessarily have to
have an immutable, sacred authority.
Being the continuators of Providence on
earth, they would have to be regarded as
almost equal to God. If it were otherwise,
would it not be impossible for them to
fulll their mission? Indeed, one cannot
intervene in human affairs, one cannot
attempt to direct and regulate them, with-
out daily oending a multitude of inter-
ests. Unless those in power are believed
to have a mandate from a superior entity,
the injured interests will resist.
Whence the ction of divine right.
43
44 The Production of Security
This fiction was certainly the best
imaginable. If you succeed in persuad-
ing the multitude that God himself has
chosen certain men or certain races to
give laws to society and to govern it, no
one will dream of revolting against these
appointees of Providence, and everything
the government does will be accepted.
A government based on divine right is
imperishable.
On one condition only, namely that
divine right is believed in.
If one takes the thought into ones
head that the leaders of the people do
not receive their inspirations directly
from providence itself, that they obey
purely human impulses, the prestige
that surrounds them will disappear. One
will irreverently resist their sovereign
decisions, as one resists anything man-
The Production of Security 45
made whose utility has not been clearly
demonstrated.
It is accordingly fascinating to see the
pains theoreticians of the divine right take
to establish the superhumanity of the races
in possession of human government.
Let us listen, for example, to Joseph de
Maistre:
Man does not make sovereigns. At
the very most he can serve as an instru-
ment for dispossessing one sovereign and
handing his State over to another sover-
eign, himself already a prince. Moreover,
there has never existed a sovereign fam-
ily traceable to plebeian origins. If this
phenomenon were to appear, it would
mark a new epoch on earth.
It is written: I am the Maker of sov-
ereigns. This is not just a religious slo-
gan, a preachers metaphor; it is the lit-
eral truth pure and simple. It is a law
of the political world. God makes kings,
word for word. He prepares royal races,
nurtures them at the center of a cloud
which hides their origins. Finally they
46 The Production of Security
appear, crowned with glory and honor; they
take their places.
4
According to this system, which
embodies the will of Providence in cer-
tain men and which invests these chosen
ones, these anointed ones with a quasi-
divine authority, the subjects evidently
have no rights at all. They must submit,
without question, to the decrees of the
sovereign authority, as if they were the
decrees of Providence itself.
According to Plutarch, the body is the
instrument of the soul, and the soul is
the instrument of God. According to the
divine right school, God selects certain
souls and uses them as instruments for
governing the world.
If men had faith in this theory, surely
nothing could unsettle a government
based on divine right.
4
Du principe gnrateur des constitutions politiques (On the
Generating Principle of Political Constitutions) Preface.
The Production of Security 47
Unfortunately, they have completely
lost faith.
Why?
Because one ne day they took it into
their heads to question and to reason, and
in questioning, in reasoning, they discov-
ered that their governors governed them
no better than they, simply mortals out of
communication with Providence, could
have done themselves.
It was free inquiry that demonetized the
ction of divine right, to the point where
the subjects of monarchs or of aristocra-
cies based on divine right obey them only
insofar as they think it in their own self-
interest to obey them.
Has the communist fiction fared any
better?
According to the communist theory, of
which Rousseau is the high-priest, author-
ity does not descend from on high, but
rather comes up from below. The govern-
ment no longer looks to Providence for
48 The Production of Security
its authority, it looks to united mankind,
to the one, indivisible, and sovereign nation.
Here is what the communists, the par-
tisans of popular sovereignty, assume.
They assume that human reason has the
power to discover the best laws and the
organization which most perfectly suits
society; and that, in practice, these laws
reveal themselves at the conclusion of a
free debate between conicting opinions.
If there is no unanimity, if there is still dis-
sension after the debate, the majority is
in the right, since it comprises the larger
number of reasonable individuals. (These
individuals are, of course, assumed to be
equal, otherwise the whole structure col-
lapses.) Consequently, they insist that the
decisions of the majority must become
law, and that the minority is obliged
to submit to it, even if it is contrary to
its most deeply rooted convictions and
injures its most precious interests.
That is the theory; but, in practice,
does the authority of the decision of the
The Production of Security 49
majority really have this irresistible, abso-
lute character as assumed? Is it always, in
every instance, respected by the minority?
Could it be?
Let us take an example.
Let us suppose that socialism succeeds
in propagating itself among the working
classes in the countryside as it has already
among the working classes in the cities;
that it consequently becomes the major-
ity in the country and that, proting from
this situation, it sends a socialist majority
to the Legislative Assembly and names
a socialist president. Suppose that this
majority and this president, invested with
sovereign authority, decrees the imposi-
tion of a tax on the rich of three billion, in
order to organize the labor of the poor, as
Proudhon demanded. Is it probable that
the minority would submit peacefully to
his iniquitous and absurd, yet legal, yet
constitutional plunder?
50 The Production of Security
No, without a doubt it would not hesi-
tate to disown the authority of the major-
ity and to defend its property.
Under this regime, as under the preced-
ing, one obeys the custodians of authority
only insofar as one thinks it in ones self-
interest to obey them.
This leads us to arm that the moral
foundation of authority is neither as solid
nor as wide, under a regime of monopoly
or of communism, as it could be under a
regime of liberty.
The Production of Security 51
The Regime of Terror
S
uppose nevertheless that the par-
tisans of an artificial organization,
either the monopolists or the com-
munists, are right; that society is not nat-
urally organized, and that the task of
making and unmaking the laws that reg-
ulate society continuously devolves upon
men, look in what a lamentable situation
the world would find itself. The moral
authority of governors rests, in reality,
on the self-interest of the governed. The
latter having a natural tendency to resist
anything harmful to their self-interest,
unacknowledged authority would contin-
ually require the help of physical force.
The monopolist and the communists,
furthermore, completely understand
this necessity.
51
52 The Production of Security
If anyone, says M. de Maistre, attempts
to detract from the authority of Gods
chosen ones, let him be turned over to
the secular power, let the hangman per-
form his oce.
If anyone does not recognize the
authority of those chosen by the peo-
ple, say the theoreticians of the school of
Rousseau, if he resists any decision what-
soever of the majority, let him be pun-
ished as an enemy of the sovereign peo-
ple, let the guillotine perform justice.
These two schools, which both take
artif icial organization as their point of
departure, necessarily lead to the same
conclusion: TERROR.
The Production of Security 53
The Free Market
for Security
A
llow us now to formulate a simple
hypothetical situation.
Let us imagine a new-born society: The
men who compose it are busy working
and exchanging the fruits of their labor. A
natural instinct reveals to these men that
their persons, the land they occupy and
cultivate, the fruits of their labor, are their
property, and that no one, except them-
selves, has the right to dispose of or touch
this property. This instinct is not hypo-
thetical; it exists. But man being an imper-
fect creature, this awareness of the right
of everyone to his person and his goods
will not be found to the same degree in
every soul, and certain individuals will
make criminal attempts, by violence or
53
54 The Production of Security
by fraud, against the persons or the prop-
erty of others.
Hence, the need for an industry that
prevents or suppresses these forcible or
fraudulent aggressions.
Let us suppose that a man or a combi-
nation of men comes and says:
For a recompense, I will undertake
to prevent or suppress criminal attempts
against persons and property.
Let those who wish their persons and
property to be sheltered from all aggres-
sion apply to me.
Before striking a bargain with this pro-
ducer of security, what will the consumers
do?
In the rst place, they will check if he
is really strong enough to protect them.
In the second place, whether his char-
acter is such that they will not have to
worry about his instigating the very
aggressions he is supposed to suppress.
The Production of Security 55
In the third place, whether any other
producer of security, oering equal guar-
antees, is disposed to oer them this com-
modity on better terms.
These terms are of various kinds.
In order to be able to guarantee the con-
sumers full security of their persons and
property, and, in case of harm, to give
them a compensation proportioned to the
loss suered, it would be necessary, indeed:
1. That the producer establish certain
penalties against the offenders of
persons and the violators of prop-
erty, and that the consumers agree
to submit to these penalties, in case
they themselves commit oenses;
2. That he impose certain inconve-
niences on the consumers, with the
object of facilitating the discovery
of the authors of oenses;
3. That he regularly gather, in order
to cover his costs of production
as well as an appropriate return
56 The Production of Security
for his efforts, a certain sum, vari-
able according to the situation of
the consumers, the particular occu-
pations they engage in, and the
extent, value, and nature of their
properties.
If these terms, necessary for carrying on
this industry, are agreeable to the consum-
ers, a bargain will be struck. Otherwise the
consumers will either do without security,
or else apply to another producer.
Now if we consider the particular
nature of the security industry, it is appar-
ent that the producers will necessarily
restrict their clientele to certain territo-
rial boundaries. They would be unable
to cover their costs if they tried to pro-
vide police services in localities compris-
ing only a few clients. Their clientele will
naturally be clustered around the center
of their activities. They would neverthe-
less be unable to abuse this situation by
dictating to the consumers. In the event
of an abusive rise in the price of security,
The Production of Security 57
the consumers would always have the
option of giving their patronage to a
new entrepreneur, or to a neighboring
entrepreneur.
This option the consumer
5
retains of
being able to buy security wherever he
5
Adam Smith, whose remarkable spirit of observation
extends to all subjects, remarks that the administration of jus-
tice gained much, in England, from the competition between
the dierent courts of law:
The fees of court seem originally to have been
the principal support of the dierent courts of jus-
tice in England. Each court endeavoured to draw to
itself as much business as it could, and was, upon that
account, willing to take cognizance of many suits
which were not originally intended to fall under its
jurisdiction. The court of kings bench instituted for
the trial of criminal causes only, took cognizance of
civil suits; the plainti pretending that the defendant,
in not doing him justice, had been guilty of some
trespass or misdemeanor. The court of exchequer,
instituted for the levying of the kings revenue, and
for enforcing the payment of such debts only as were
due to the king, took cognizance of all other contract
debts; the plainti alleging that he could not pay the
king, because the defendant would not pay him. In
consequence of such ctions it came, in many case,
to depend altogether upon the parties before what
court they would chuse to have their cause tried;
and each court endeavoured, by superior dispatch
and impartiality, to draw to itself as many causes as
58 The Production of Security
pleases brings about a constant emulation
among all the producers, each producer
striving to maintain or augment his clien-
tele with the attraction of cheapness or of
faster, more complete and better justice.
If, on the contrary, the consumer is not
free to buy security wherever he pleases,
you forthwith see open up a large profes-
sion dedicated to arbitrariness and bad
management. justice becomes slow and
costly, the police vexatious, individual lib-
erty is no longer respected, the price of
security is abusively inated and inequita-
bly apportioned, according to the power
and influence of this or that class of
consumers. The protectors engage in bit-
ter struggles to wrest customers from one
it could. The present admirable constitution of the
courts of justice in England was, perhaps, originally
in a great measure, formed by this emulation, which
anciently took place between their respective judges;
each judge endeavouring to give, in his own court,
the speediest and most eectual remedy, which the
law would admit, for every sort of injustice. (The
Wealth of Nations [New York: Modern Library, 1937];
originally 1776), p. 679)
The Production of Security 59
another. In a word, all the abuses inherent
in monopoly or in communism crop up.
Under the rule of free competition, war
between the producers of security entirely
loses its justification. Why would they
make war? To conquer consumers? But the
consumers would not allow themselves to
be conquered. They would be careful not
to allow themselves to be protected by men
who would unscrupulously attack the per-
sons and property of their rivals. If some
audacious conqueror tried to become dic-
tator, they would immediately call to their
aid all the free consumers menaced by this
aggression, and they would treat him as he
deserved. Just as war is the natural conse-
quence of monopoly, peace is the natural
consequence of liberty.
Under a regime of liberty, the natu-
ral organization of the security industry
would not be dierent from that of other
industries. In small districts a single entre-
preneur could suce. This entrepreneur
might leave his business to his son, or sell
60 The Production of Security
it to another entrepreneur. In larger dis-
tricts, one company by itself would bring
together enough resources adequately to
carry on this important and dicult busi-
ness. If it were well managed, this com-
pany could easily last, and security would
last with it. In the security industry, just as
in most of the other branches of produc-
tion, the latter mode of organization will
probably replace the former, in the end.
On the one hand this would be a mon-
archy, and on the other hand it would be
a republic; but it would be a monarchy
without monopoly and a republic with-
out communism.
On either hand, this authority would
be accepted and respected in the name
of utility, and would not be an authority
imposed by terror.
It will undoubtedly be disputed whether
such a hypothetical situation is realizable.
But, at the risk of being considered uto-
pian, we arm that this is not disputable,
that a careful examination of the facts will
The Production of Security 61
decide the problem of government more
and more in favor of liberty, just as it does
all other economic problems. We are con-
vinced, so far as we are concerned, that
one day societies will be established to agi-
tate for the freedom of government, as they
have already been established on behalf of
the freedom of commerce.
And we do not hesitate to add that
after this reform has been achieved, and
all artificial obstacles to the free action
of the natural laws that govern the eco-
nomic world have disappeared, the situ-
ation of the various members of society
will become the best possible.
62 The Production of Security
N OT E
Gustave de Molinari (March 3, 1819January 28, 1912)
was a Belgian-born economist associated with the French
conomistes, a group of laissez-faire liberals. Through-
out his life, Molinari defended peace, free trade, freedom of
speech, freedom of association, and liberty in all its forms. He
was the originator of the theory of Market Anarchism.