("Utopia", by Sergey Kovrigo)




Introduction

Libertarianism denotes a current of thought, mainly American, rooted in classical liberal ideas and values. Its leading figures include Murray Rothbard, Randy Barnett, and Hans-Hermann Hoppe.

Libertarians are either minarchists, who want a minimal State, or anarchists (anarcho-capitalists), who pursue the pure and simple elimination of any kind of state structure. When all is said and done, minarchists are classical liberals, from whom anarchists appear to differ only by taking the one further step of reducing the State to zero [1].  Even so, the difference between anarchists and minarchists is not one of degree, but, as we shall see, one of nature.

It is the "anarchist" libertarians who interest us here.

The anarcho-libertarian universe is made up of natural rights, agencies, and fables. It is in the name of the rights that they believe belong to man by the very fact of his human nature that libertarians call for the removal of the State.  For them the very existence of the State violates these rights. The task of pronouncing and executing legal decisions should, in their view, fall to private, competing agencies. Legislation and the development of norms should be left to judges.

After (I) emphasizing the fatum of all anarchist thinking, I will examine four practical shortcomings of the anarcho-libertarian idea. These are (II) the problem of anarcho-libertarian legislation and the foreseeable emergence of anti-liberal legislation, (III) the problem of legal practicability, (IV) the probable resurgence of a State, and (V) the disappearance of the minimal guarantees provided by the rule of law. I will then look at two major theoretical flaws: (VI) the anarcho-libertarian theories of "natural rights" and (VII) the project of a "Systematic Libertarian Code of Law" and, finally, (VIII) the treatment, by anarcho-libertarians, of the crucial political question: "Who makes the rules in the anarcho-libertarian order?"


I. Which institutions?

To those who demand "let the best govern," Karl Popper replies that we need to reason in terms of institutions and not in terms of human beings [2].  Anarcho-libertarians call for liberty, and their intentions are clear. But what are their institutions?

We are forced to observe that anarcho-libertarian institutions do not exist. Anarcho-libertarians fall back on the creative power of Adam Smith's "invisible hand," that is, the market. This is not risible, but neither does it guarantee the maintenance of even the most elementary rights. Anarcho-libertarians' logic prevents them from reasoning in terms of institutions. Their program is exclusively negative, and consists of doing away with the State, pure and simple.

With no institutions to speak of, anarcho-libertarians tell fables. They imagine how things could be after the disappearance of the State. In a recent book (1998), Barnett, a leading figure of the anarcho-libertarian movement, starts by putting forward a theory of natural rights (justice in the liberal sense of the term) and of rule of law. He concludes that the preservation of these rights requires the dissipation of the State by placing it in competition with private agencies. Just when we are hoping that Barnett, a distinguished lawyer and former public prosecutor, will offer us the fruit of his legal reflections on the institutional future of an "de-stated" libertarian community, he gratifies us with a chapter superbly entitled "A Short Fable."

In this "short fable," two private agencies, Justice Inc. and TopCops, merge. They then adopt doubtful practices which lead to their rejection by a coalition of other agencies, and to their ultimate disappearance. These events, Barnett writes, temper the enthusiasm that had originally greeted the advent of the state-free society.


II. Anarcho-libertarian legislation?

Beyond this lack of institutions, one question immediately comes to mind: what is there to guarantee that the law prevailing in the anarcho-libertarian utopia will be faithful to the values of liberty?

To this question Rothbard, to whom anarcho-libertarians constantly refer, replies that the various agencies would need to adhere to a "Basic Code" of fundamental natural rights [3].  In the absence of specific institutions that guarantee that it will be respected, this Code is no more than wishful thinking. To this Barnett responds that if an anarcho-libertarian society comes into being peacefully, "we can expect the resulting order to be more or less liberal." (1998, 281) David Friedman, son of Nobel prize-winner Milton Friedman, is more direct: nothing, nothing whatsoever, guarantees that the "resulting order" will be liberal (1973, 173).

In reality, there will be no "resulting order," but a multitude of resulting (legal) orders, as many, in fact, as there are individuals who set themselves up as judges. This is because when judges are instituted as the sole sources of law (Barnett 1998, 289) and any person can set himself up as a judge, the outcome is as many legal orders as there are individuals who decide to create law. How do we imagine myriads of competing legal orders cultivating the values of liberty? Is it not self-evident that, alongside liberal orders, we will find ourselves confronted with mini-Hitlerian Germanies, mini-Pol Pot Cambodias, and mini-medieval societies that burn heretics at the stake? In short, all known tyrannies and a hundred more besides?


III. Legal practicability of an anarcho-libertarian Utopia

The anarcho-libertarian order will necessarily spawn a multitude of competing and coexisting legal orders. The co-existence of legal orders is certainly nothing new in the history of humanity: each state defines its own legal order, which coexists alongside those of other states.

Such coexistence does not pose a problem per se. A Norwegian couple that marries in Norway and later decides to divorce will bring the matter before a Norwegian court, which will apply Norwegian law. The same applies to a German couple in Germany. But what happens when the husband is Norwegian and the wife German? And what if our German-Norwegian couple lives in Switzerland and has part of its assets in Italy?

It is this type of question, more precisely the rules for handling "conflicts of laws," that "international private law" exists to resolve. In legal terms, one can say that a conflict of laws exists when a situation is affected by an "element of extraneity," i.e., where one aspect at least of this situation is potentially governed by a law that is not the same as the one that appears to necessarily govern the rest of the situation. Apart from the conflict of laws, there is also the conflict of jurisdictions: which court is competent to settle the dispute?

 This brief incursion into the field of law gives an idea of the unfathomable complexity of private international law. Tax specialists who complain about the difficulty of their field, even though it provides their daily bread, are pertinently aware of this: there is no common measure in private international law. Unlike tax law, the sophistication of which can be attributed to exogenous, and mainly political, factors, complexity is an inherent feature of private international law and of the co-penetration of competing legal orders.

Only exceptionally are everyday human beings concerned by the problems raised by such co-penetration. In an anarcho-libertarian order such problems would be frequent. The simple act of buying a loaf of bread or an apple would, in the event of a legal dispute, expose the purchaser and the vendor, with their different legal orders, to inextricable problems involving conflicts of laws and jurisdictions. Step out into the street, and you will need a lawyer. An anarcho-libertarian order presupposes an international private law, the complexity of which, multiplied a thousand-fold, would be humanly unmanageable.

The response that the various legal orders would find ways of circumventing these technical difficulties is unsatisfactory; apart from the fact that an anarcho-libertarian is epistemologically unable to predict what will happen following the abolition of the State (see item I), it is highly likely that many mini-legal orders would remain doggedly and radically independent and refuse to make the slightest concession, however rational and sensible.


IV. The probable resurgence of a state

How do we avoid the rebirth of the execrated State? In Barnett's short fable Justice Inc. and TopCops end up dominating the justice and police market, and it is their doubtful practices that bring about their fall. Let us now suppose, instead, that Justice Inc. and TopCops remain honest and grow to take, say, 70% of the market. When they merge, they rename themselves "State" and ban their competitors. But no, Barnett retorts, the anarcho-libertarian order needs to adhere to what he calls the "principle of competition," which bans different agencies from forcefully evicting each other from the market. Very good, but who will ensure that this principle is respected, if two dominant agencies take it upon themselves to transgress it? And what sort of state will be born from the merger of these agencies?

And, indeed, suppose that after their merger (to form Justice&Cops Inc.) TopCops and Justice Inc. do not seek to remove their competitors; how can we describe the order resulting from this merger? Let us look more closely: there are laws with policemen to ensure that the laws are respected, judges to apply them and prisons in which to lock up criminals. Does this not remind you of something? Of course: a State! A very particular type of state, perhaps, because Justice&Cops' customers will be entitled to leave this order for another as soon as they wish. Apart from the fact that this is already the case in most states today, this proposal holds good only as long as the government/managers of Justice&Cops tolerate this: after all, it is up to them to determine what is or is not allowed.

Taking their lead from Rothbard, anarcho-libertarians customarily tell us that history shows state structures to have provided the framework for so many massacres that it is time to try something else.  Besides being tantamount to saying, "the air is polluted, therefore I stop breathing," this attitude represents a very selective reading of history.

In fact, anarcho-libertarians generally point to few precise historical examples of anarchist orders, such as pre-Cromwellian Ireland. This modesty honors them, since history is full of innumerable anarcho-libertarian orders, also referred to as "natural states." We, of course, understand anarcho-libertarians' reticence to justify their position by the example of these natural states, amply illustrated by present-day Africa, with its nearly incessant mutual warring and utter under-development; they end up invariably organizing what - horresco referens - can only be defined as a State.


V. Disappearance of the "Rule of Law" and of its minimum guarantees

From the anarcho-libertarian viewpoint, the only thing that merits being termed "law" is a set of norms that sanction the rights that they define as belonging to man by the fact of his human being (Rothbard makes explicit reference here to the natural law theories of Aristotle and St. Thomas Aquinas). For anarcho-libertarians, the minimal guarantees offered by the rule of law are without interest as soon as their fundamental rights are limited in any way.
 And what are these minimum guarantees of the rule of law?

Hayek explains that the rule of law has eight characteristics (1960, 206ff.): laws that are non-retroactive, certain and known, equality before the law (i.e., laws that are perfectly general, abstract, and permanent), an independent judiciary, a government subject to rules, a judicial system to control the legality of administrative acts and judicial decisions, and a Bill of Rights (Hayek is too aware of the weakness of naïve iusnaturalism to list these rights).

The principle of equality before the law (isonomy), which forms the basis of the Hayekian rule of law, defines a normative ideal - perfectly general, abstract, and permanent laws - which will never be completely realized. Even so, the lawmaker should strive in this direction [4].  This normative ideal does not require that all state norms be general and abstract: a court sentence or a police injunction are norms that carry constraints, which can only be individual [5].  Isonomy does, however, require that these individual norms (orders, commands) conform to pre-existing rules. Isonomy therefore implies a hierarchy of norms.

Fuller (1969) states that if rules of law are intended to regulate behavior effectively, they must also be comprehensible, possible, and non-contradictory.

The features of Hayek's and Fuller's State fall into two registers: the format of the norms as such (non-retroactive, certain, known, comprehensible, non-contradictory, possible) and an institutional format: independent jurisdictions need to exist in order to apply the norms to legal subjects, and also to assess the legality of the acts of the administration and the judicial authorities. Adding to this the necessity for a jurisdiction to ensure the generality of the norms, we can define a state governed by the rule of law as:

A state operating by means of rules (general, abstract, and permanent norms), which are non-contradictory, possible, comprehensible, certain, public, and non-retroactive - and by means of commands (individual norms), upholding the principle of the hierarchy of norms and organizing the material sanction of the infringement of the rules by means of a power that is distinct and independent from the normative power [6]. In this state the conformity of commands with rules and the respect of the meta-rule (generality of rules) are controlled by a power or powers that is/are distinct and independent from the normative power.

The concept that Hayek and Fuller propose is formal in nature, and does not as such sanction any normative content. What then is the interest?

In formal terms, the rule of law is not a value, but a tool for realizing a value, that of individual - or "negative" - freedom.

What do the following persons have in common: Louis XIV, who orders the arrest and imprisonment of a subject whose clothing he dislikes; a finance minister who exempts family and friends from paying taxes; a mayor who uses civil servants for private domestic tasks; a policeman who applies wholly personal interrogation techniques; a vote recounter in Florida during the American presidential election of 2000, who identifies voters' wishes from improperly perforated voting slips without any external control; the head of a state commission who decides "by feeling" to finance film A rather than film B; and all the despots in the history of humanity? The answer: arbitrary power.

An act is arbitrary as soon as it does not conform to a pre-existing rule. (That this rule does not exist or has been infringed is irrelevant here). The behavior of someone seeking the general good is no less arbitrary than the behavior of someone pursuing a personal interest. Arbitrariness is not a moral question. "Arbitrary" and "despotic" are synonymous.

Freedom consists in not being subject to the constraint of the other. Constraint exercised arbitrarily is unforeseeable and unavoidable. Constraint exercised in accordance with pre-established rules is foreseeable and avoidable. Insofar as it permits the avoidance of constraint, the rule of law is an instrument for the achievement of individual liberty.
"Untrue!" our anarcho-libertarians retort; from the viewpoint of liberty, better the arbitrary injunctions of a well-intentioned Sovereign than the rules of a totalitarian Prince.

William P. Baumgarth provides a systematic critique in the Journal of Libertarian Studies. Reminding us that the distinction between rules (general norms) and commands (individual norms) is central to Hayek's concept of the rule of law, Baumgarth writes: "observing that even negative rules can be coercive, we need to ask whether obedience to rules really makes us freer than obedience to commands." (1978, 11-28)

Liberal Hayek stands opposite anarcho-libertarian Baumgarth. In a state whose organs act in accordance with pre-established rules, the recipients of these rules have a certain room for maneuver, a margin of freedom (the less constraining the rules, the greater these are). In a system that operates on the basis of commands, there is no liberty, no room for maneuver [7].

Let us imagine the extreme case of a society that has extremely constraining rules, severely reducing their recipients' room for maneuver. Let us compare it with a society whose benevolent ruler issues very few commands, and in which individuals are left largely to their own devices. Is the second society freer than the first? No, because in the absence of the sovereign, other normative sources (village head, gang leader, paterfamilias, etc.) take over. Anomy (normlessness) does not exist in human societies.

The achievement of the formal rule of law is not a sufficient guarantee of freedom: the content of its norms, or certain ones, may well be odious (for example, an asphyxiating penal regime). But this rule of law remains an essential component of liberty. The formal rule of law is a necessary, but non-sufficient pre-condition for the achievement of the ideal of liberty. This fact has been missed by the anarcho-libertarians in their blind pursuit of the absolute realization of their absolute rights.

But no, one might reply, if the rule of law is truly a necessary pre-condition for individual liberty, the anarcho-libertarian orders will be concerned to take on board its essential elements. But what guarantees do we have of this? What assurance can we have that the advent of the libertarian order will not be concomitant with the disappearance, at least in certain areas, of the principles of nullum crimen, nulla poena sine lege?

On closer inspection, we are forced to observe that the infernal complexity of the legal relationships that would be necessarily engendered by the anarcho-libertarian order (cf. item III) has the effect, per se and independently of the "liberalism" of the various legal orders composing it, of excluding certain aspects of the rule of law defined by Hayek and Fuller. How, indeed, can the prevailing rules achieve an acceptable level of certainty when the simple act of crossing the road exposes the pedestrian to the norms - including the goodwill of self-proclaimed despots - of thirty competing legal orders? How and why should the different legal orders take the trouble to ensure that their norms are non-contradictory?


VI. Anarcho-libertarian theories of natural rights

In most cases, anarcho-libertarians root their systems in a theory of natural rights. In this section, I would like to discuss the merits of the natural rights theories of three libertarian authors: Rothbard, Hoppe and Barnett.

M. ROTHBARD

The structure of Rothbard's natural rights theory is binary: from such and such natural facts about man and nature, it follows that man possesses such and such rights [8].  Rothbard writes in chapter six of his Ethics of Liberty, "Crusoe Social Philosophy": "Crusoe, in natural fact, owns his own self and the extension of his self into the material world, neither more or less"; (2002/1982, 34) and on interpersonal relations, Rothbard writes: "The natural alienability of tangible property as well as man's labor service makes possible the network of free exchanges of ownership titles." (ibid., 41) From these natural facts derive natural rights:

[E]very man has an absolute right to the control and ownership of his own body, and to unused land resources that he finds and transforms. He also has the rights to give away such tangible property (though he cannot alienate control over his own person and will) and to exchange it for the similarly derived properties of others. Hence, all legitimate property-right derives from every man's property in his own person, as well as the 'homesteading' principle of unowned property rightly belonging to the first possessor. (ibid., 60)

But to deduce values from facts is not logically valid; it violates the "Humean prohibition." David Hume wrote in 1739-1740:

In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou'd subvert all the vulgar systems of morality ... (1964/1739-1740, 245-246)

Facts and values belong to different logical registers. To be fair, Rothbard does attempt to engage this objection in a note: "It is frequently alleged that nothing can be in the conclusion of an argument which was not in one of the premises; and that therefore, an 'ought' conclusion cannot follow from descriptive premises. But a conclusion follows from both premises taken together; the 'ought' need not be present in either one of the premises so long as it has been validly deduced." (2002/1982, 14, n. 15) In fact, however, the number of premises is not relevant to the question.

On the fact/value dichotomy, as on many other points [9],  Rothbard's thinking is, at best, pre-Hayekian (to name one of the great figures of twentieth century liberalism). Hayek did not try to simply restate a vulgar theory of natural rights. Instead, he asserted the possibility of a third way in the field of human rights, between positivism and naïve iusnaturalism [10].  Hayek's iusnaturalism is more sophisticated than what the liberal tradition had previously offered. To put it briefly, he shows that evolution has selected complexes of values and institutions that cannot be ignored without jeopardizing the fruits of our civilization [11].  Hayek's theory of evolution has generated a vast literature, much of it in the form of critique; but at least his theory is a genuine theory, and not simply the restatement of naïve assertions that have been refuted for centuries.

H.-H. HOPPE

Hoppe is conscious of the blatant weaknesses of Rothbard's natural rights theory: "Rothbard may even have overstated his own agreement with classical natural-rights theory ... and thus unintentionally have aggravated an already existing problem." [12] Hoppe tries instead to demonstrate Rothbard's axiom by other means. He describes libertarianism as "a systematic law code, derived by means of logical deduction from a single principle, the validity of which ... cannot be disputed without falling prey to ... performative contradictions ..." (2003/2001, 200)
Hoppe's subtle approach is twofold: it is an argumentum a contrario and an impossibility theorem.

If, contrary to the principle of original appropriation ("Rothbard's axiom"), a person were not considered the owner of himself and goods and locations originally appropriated by himself, then one would have to choose between two other arrangements. The first one would distinguish between Übermenschen and Untermenschen, which is certainly possible, but not acceptable as human ethics: "For a rule to aspire to the rank of a law — a just rule — it is necessary that it apply equally and universally to everyone." (ibid., 200, n. 17) The second alternative — universal and equal co-ownership — would lead to the immediate death of mankind.

This hardly demonstrates anything. First, many universal ethics systems can be, and have been, elaborated without provoking the extinction of humanity. For instance, consider a system in which everyone owns his own self but only part of the resources (say 85%) which he has appropriated and transformed. Second, the proposition that ethics must be universal has itself to be demonstrated. Nietzsche, for example, has developed a whole system of ethics which is certainly neither universal nor egalitarian. [13]

The impossibility theorem proceeds from a logical reconstruction of the necessary conditions of ethical problems. "Only if both parties to a conflict are capable of propositional exchange, i.e., argumentation, can one speak of an ethical problem," writes Hoppe. He then proceeds to point out "that everything that must be presupposed by argumentation cannot in turn be argumentatively disputed without getting entangled in a performative contradiction, and that among such presuppositions there exist not only logical ones, such as the laws of propositional logic (e.g., the law of identity), but also praxeological ones. ... [I]t is then shown that the mutual recognition of the principle of original appropriation, by both proponent and opponent, constitutes the praxeological presupposition of argumentation." (2003/2001, 202, n. 17) Then comes the coup de grâce: "No one can propose anything and expect his opponent to convince himself of the validity of this proposition or else deny it and propose something else unless his and his opponent's right to exclusive control over their 'own' originally appropriated body (brain, vocal chords, etc.) and its respective standing room were already presupposed and assumed as valid." (ibid.)

To summarize: ethics supposes argumentation, which supposes that I have control over my own body. This is surely a rather ingenious and interesting attempt to use Jürgen Habermas and Karl-Otto Apel's ethics of discussion  to justify Rothbard's axiom, but it is not convincing. That ethics supposes argumentation is a proposition that is not beyond critique. Again, Nietzsche, for example, has developed an ethical system that presupposes no argumentation at all, being rooted as it is in the mind of each individual. [14] Second, argumentation may suppose the control of some parts of my body and of my "standing room," but control is not appropriation. [15]  Shall I be considered the legitimate proprietor of every "standing room" where I talk to someone else? Third, even if the fact of my arguing with someone else implied the full and permanent property of my body and standing room, it would not imply the appropriation of "unused land resources that I find and transform" (Rothbard 2002/1982, 60) or, in Hoppe's almost identical words, the ownership of scarce resources that I find and transform. (2003/2001, 200) Hoppe could answer that this ownership follows from the appropriation of one's own body, but that was the point he set out to demonstrate.

R. BARNETT

A third anarcho-libertarian "natural rights" theory is that of Barnett. He writes: "given the pervasive social problems of knowledge, interest, and power confronting every human society, if human beings are to survive and pursue happiness, peace and prosperity while living in society with others, then their laws must not violate certain background natural rights or the rule of law." (1998, 17) Barnett constructs a theory that is not dependent on the objective or subjective character of the values and rights at stake. If you choose these values, given certain salient characteristics of human nature, then you should plead for the implementation and respect of certain rights. Thus you may well be an ethical relativist à la Hume, or a decisionist à la Max Weber, and adhere to the theory of Barnett: "you need not agree with how I ... characterize these rights to accept my thesis that they are necessary to handle the pervasive social problems of knowledge, interest, and power." (ibid., 3)

I am afraid that this "natural rights" theory is no natural rights theory in either the Rothbardian, classical, or modern sense. The "givens" are iusnaturalist premises of the kind that every author has to concede in the field of human sciences. The values selected by Barnett are typically liberal values; a classical liberal will have no problem accepting them, or accepting the necessity to guarantee a wide collection of rights in order to realize them. Since Barnett also recommends eliminating the State, the classical liberal will probably have a problem with that part of the "then" — or maybe not, and then become an anarchist-liberal. But it is Barnett's great merit that he does not pretend to impose "objective" values and rights on his readers through schemes à la Rothbard or Hoppe. Barnett's theory is the stronger for this.


VII. The Systematic Libertarian Code of Law

Not only does Rothbard base his whole theory on "natural rights" as real as Plato's Ideas, but he also seeks to derive the entire body of libertarian law from these two natural principles — a person's right to the control and ownership of his own body, and to unused land resources that he finds and transforms. Rothbard writes: "from these two principles we can deduce the entire structure of property rights in all types of goods" [16];  he then proceeds to analyze this in his book, in the chapters "Property and Criminality," "The Problem of Land Theft," "Law Monopoly," "Children and Rights," "Bribery," "Property Rights and the Theory of Contracts," etc., all of which start from his two single principles.

Rothbard is, of course, not the first to nourish the project of deriving law from higher principles. This undertaking is, in fact, emblematic of Cartesian or rationalistic individualism. Descartes wrote in his Discourse on Method:

[T]here is seldom so much perfection in works composed of many separate parts, upon which different hands had been employed, as in those completed by a single master ... [T]hose nations which, starting from a semi-barbarous state and advancing to civilization by slow degrees, have had their laws successively determined, and, as it were, forced upon them simply by experience of the hurtfulness of particular crimes and disputes, would by this process come to be possessed of less perfect institutions than those which, from the commencement of their association as communities, have followed the appointment of some wise legislator ... [T]he past pre-eminence of Sparta was due not to the pre-eminence of each of its laws in particular ... but to the circumstance that, originated by a single individual, they all tended to a single-end.

The remarkable centuries-old persistence of Roman Law and Common Law is due precisely to their origination in the vicissitudes of reality, and not in the ethereal principles of one or more isolated individuals. [17] In addition to this historical fact, [18] there also exists a logical reason that excludes the possibility of deriving any systematic code of law from the two libertarian principles. The fact is that these two principles are material principles, while any system of law is always composed not only of material laws, but of procedural laws as well. This is an inescapable conclusion as soon as one admits, for instance, the necessity of jurisdictions, as Rothbard (2002/1982, 91) and Hoppe (2003/2001, 252) do. The question is: how are we supposed to deduce procedural rules from material principles? This is logically impossible. [19]


VIII. Who makes the rules?

Now why do these anarcho-libertarians entangle themselves in these nasty intellectual morasses where they are forced to sustain the unsustainable? They have a reason for doing so, a pretty good reason, in fact: to elude the political question. Indeed, if the whole body of law cannot be derived a priori from basic principles, then someone will have to determine the content of the rules. There is no third way. The legislator may be a Cartesian rationalist, inventing new rules, or an obedient Hayekian, trying to draw inspiration from the Western legal tradition. [20] The legislative power can be shared between an assembly and judges, or vested entirely in the assembly or the judges. No matter: rules will have to be framed. This brings us to the very essence of the political question: who will make the rules? The scope of the possible answers is finite: a self-chosen legislator (a dictator, in other words), an oligarchy, or a limited or unlimited democracy, and their different variants.

If the anarcho-libertarian allows that at least some parts of the law cannot be deduced a priori from basic principles — as is the case with probably 95% of existing private and commercial law, be it continental or Anglo-Saxon, which is highly technical owing to the necessities of capitalist economies — then he has to admit the existence of the political question. And this he cannot do, because it would force him to choose between a limited range of options, the only saleable one of which — democracy — he refuses, given its inevitably non-libertarian consequences.

But to deny reality does not change it, so the question remains: who will frame the rules in the anarcho-libertarian world? Rothbard writes that in the "no-State" community "the almost universal inclination would be to leave the execution of justice to the courts, whose decisions based on rules of evidence, trial procedure, etc., similar to what may apply now, would be accepted by society as honest and as the best that could be achieved." [21] Thus judges, and only the judges, make the law in the anarcho-libertarian "free society." A system in which the people who draw up the laws are not elected has two names: dictatorship (at best oligarchy) and absolute monarchy. But no, answers the anarcho-libertarian, there is a huge difference between the anarcho-libertarian order and known forms of dictatorships: in the libertarian world, you are always authorized to leave a juridical order, and to opt for another one, whose rules please you more. But you would not, would you? In the real world, you do not leave your possessions, your job, and your family from one day to another if you disagree with the way the rules are evolving or with the identity of the leader. What community would survive such a regime? No, what you demand is to have a say in the rules, or, at the very least, in the choice of the leader.

Let us analyze a bit further the anarcho-libertarian's answer to the political question with Hoppe. As the author of Democracy - The God That Failed, surely Hoppe would not opt for democracy; therefore, he makes a choice similar to Rothbard's. Hoppe elaborates in the last part of his above-mentioned book an illustration of how the anarcho-libertarian world could hypothetically work. [22] This world would be made up of covenant communities "founded and owned by a single proprietor who would 'lease' separate parts of the land under specified conditions to selected individuals." (2003/2001, 214) The proprietor would fulfill three tasks: selection of members, land planning, and leadership (ibid., 215). It is here that the normative power lies. The criminals in the community, Hoppe continues, would have to be punished. That means that these 'criminals' would be punished by rules and procedures that they do not choose, [23] or, even worse — the proprietor may be of a rather despotic kind — by the whim of the moment.

What now of the community's members who honestly abide by the rules, but dare to formulate the wish of having a say in the making of the rules, or at least in the choice of those who make the rules? In short, what if some members of the community rediscover the basic advantages of a limited democracy? Hoppe's answer is crystal clear: they face "ostracism, exclusion and ultimately expulsion." (2003/2001, 216) "In a covenant concluded among proprietor and community tenants for the purpose of protecting their private property, no such thing as a right to free (unlimited) speech exists, not even to unlimited speech on one's own tenant-property. One may say innumerable things and promote almost any idea under the sun, but naturally no one is permitted to advocate ideas, such as democracy and communism, contrary to the very purpose of the covenant of preserving and protecting private property. There can be no tolerance toward democrats and communists in a libertarian social order." (ibid., 218) Even left-leaning libertarians, "if they continued with their behavior or lifestyle, would be barred from civilized society ..." (ibid., 212)

As we see, anarcho-liberals cannot evade the political question. They only reject one of the possible answers to this question: democracy.


Conclusion

A coercion-free human society is inconceivable. Everybody admits this, including anarcho-liberals. Therefore, every political philosophy must answer two questions: "Who will exercise the power of coercion?" and "How will it be used?" To these questions, the classical liberal tradition offers two answers: limited democracy, and the rule of law.

For anarcho-liberals, the vindication of man's "natural" rights — to control and ownership of his own body, and to unused land resources that he finds and transforms — requires the elimination of the State, because any form of statist monopolization of coercion on a territory necessarily entails the violation of these rights. Then, and only then, will a regime of "absolute freedom" emerge. (2002/1982, 41)

Unfortunately, regarding the nature of this regime of "absolute freedom," the anarcho-liberal is forced epistemologically into silence, at best conjectures; he may fancy how things could happen after the disappearance of the State, but nothing more. Indeed, that is the very definition of an anarchist: not to plead for the installation of any institution. If he does so, he is no longer an anarchist. Anarchism inexorably leads its proponents into an intellectual vacuum: let us do away with the State, and then hope that our "natural rights" will be vindicated.

If we now follow the anarcho-liberal into the imaginary world of pure hypothesis, and if we accept to put aside the illiberal consequences that the vanishing of the State's monopolization of coercion would immediately have - if, in short, we analyze the very "libertarian order" that the anarcho-liberals, against all evidence, believe would come about - then we see that this order is not liberty at all.

Indeed, to the first question — who will exercise the power of coercion in the libertarian order? — the anarcho-liberal refuses to answer limited democracy, as the classical liberal does, because of the non-libertarian consequences that democracy would immediately have. But if the rules are not framed by an elected body of people, or through a direct democratic system, then they have to be formulated by an unelected body of people or, as in the classical state of nature, by individuals. There is no other option, except to consider that a human society — particularly a capitalist society — could live without rules, which is nonsensical. Hoppe, in particular, explicitly assumes the inevitably authoritarian character of a libertarian order. [24]

With respect to the second question — how will the power of coercion be exercised in the libertarian order? — either you answer "by law" or you will get the "rule of men." The whole liberal tradition, be it American or European, from Hayek to Locke, and beyond it to Thomas Aquinas, Aristotle and the isonomy of the Greeks, pleads for the rule of law against the rule of men. Sweeping aside this "abstract rationalism,"  [25] the anarcho-liberal submits that the form of the norms -(rules or commands) should not concern us, for what is important is their content.  Of course, the content of the norms is crucial for liberty to flourish in a community. [26] But, although not sufficient, the rule of law is nevertheless a necessary pre-condition for liberty to be possible: if you are not ruled by law, you will necessarily be ruled by the despotic whim of the king, the leader of the pack or the dictator and his police. Again, there is no other option, except to consider that a human society could live without norms. Given the extreme "decentralization" of coercion in the libertarian order, the fact that in a libertarian order the "leaders" would not be elected and the inability of anarcho-liberal intellectuals to grasp the link between the rule of law and freedom, would you bet on an anarcho-libertarian order ruled by law, not by men?

As a philosophy of liberty, anarcho-liberalism is epistemologically doomed to failure. In fact, very few liberal thinkers have succumbed to the mirage of the anarcho-liberal's "absolute freedom." In this regard, I would like to leave the last word of this paper to one of these great classical liberal thinkers whom anarcho-liberals use and quote at length, as if they belonged in the same intellectual league: "Liberalism is ... far from disputing the necessity of a machinery of state, a system of law, and a government. It is a grave misunderstanding to associate it in any way with the idea of anarchism. For the liberal, the State is an absolute necessity, since the most important tasks are incumbent upon it: the protection not only of private property, but also of peace, for in the absence of the latter the full benefits of private property cannot be reaped." [27]

..........................................

[1] The genealogy of the term "liberal" in English, from its classical sense to its present, leftist meaning, has been retraced many times (see Hayek 1960, 397-411). In the English-speaking world, the word "libertarian" is used more and more as a synonym of "liberal" in its earlier meaning. In the present paper, I follow this usage, and distinguish between "minarchist libertarians" — or classical liberals — and "anarcho-libertarians," or anarcho-liberals.

[2] Popper (1963/1945, 121). In the same vein, Immanuel Kant mocked the Genevan philosopher Mallet du Pan, who maintained that government should be entrusted to the best person, and the discussion of institutions left to madmen. Kant writes:  "Who has ruled better than a Titus and a Marc Aurelius, and yet one was succeeded by a Domitian and the other one by Commodus, which could not have happened under a good political constitution ..." (Kant 1983/1795, 115).

[3] See, for example, Rothbard (1977, 48).

[4] Godefridi (2003, 331-350); Godefridi (2004, 143-169).

[5] On this subject, see Bentham (1970/1782, 82 and 91); Dabin (1953, 75); Altman (1993, 190-191).

[6] That, in a common law system, the judge himself is, at least partly, the source of the law, is, of course, not antithetic to the rule of law, as long as the judge cannot, in one single sentence, invent a new general rule and apply it to the case submitted to him.

[7] Fuller explains this very well (1969, 207).

[8] And because man has, by his very nature, such and such rights, then, to be consistent with these rights, one has to recognize that the "libertarian free society" is the only option. Any other option implies the violation of these fundamental rights and must, therefore, be rejected.

[9] The other fundamental flaw of the Rothbardian kind of natural rights reasoning is that it is always based on a selection of facts. But why these particular facts and not others?

[10] "There is nothing ‘natural' in any particular definition of rights ... such as the Roman conception of property as a right to use or abuse an object as one pleases, which, however often repeated, is in fact hardly practicable in its strict form" (Hayek 1960, 158).

[11] "Mankind has learned from long and painful experience that the law of liberty must possess certain attributes. " (Hayek 1960, 205).

[12] Hoppe, Introduction to Rothbard (2002/1982, xxxi).

[13] "Every elevation of the type ‘man' has hitherto been the work of an aristocratic society and so it will always be—a society believing in a long scale of gradations of rank and differences of worth among human beings, and requiring slavery in some form or other" (Nietzsche 1973/1886, 192, §257). See also, for another example, Aristotle (1977, 1255 a 1): "It is manifest therefore that there are cases of people of whom some are freemen and the others slaves by nature, and for these slavery is an institution both expedient and just."

[14] "To assume the right to new values—that is the most formidable assumption for a load-bearing and reverent spirit" (Nietzsche 1932/1883-1885, 84). See also Nietzsche (1974/1882, §335).

[15] The control/appropriation dichotomy is of the same type as the fact/value dichotomy.

[16] Rothbard (2002/1982, 97). The intention of Hoppe is expressely identical; see Hoppe (2003/2001, 200).

[17] Godefridi, 2005. It must be observed that Rothbard himself notes en passant the merits of Roman and Common Law (2002/1982, 178), that to show that the law is not State-made but judges-made. The fact is that the vast majority of these Roman and Common Law judges were and, for the latter, still are, appointed by "the State."

[18] Confirmed, à propos contract law, by Barnett (1998, 114): "Those philosophers (who are not also lawyers) who speculate about the morality of promise-keeping are oblivious to the myriad of problems that can arise when one person makes a commitment to another. Without some knowledge of the intricacies of practice it is next to impossible to generate useful action-guiding precepts governing contractual relationships. What, for example, does an abstract moral duty to keep one's promises tell us about the circumstances to which the doctrine of anticipatory breach, the substantial performance doctrine, the parol evidence rule, or the doctrines of consideration and promissory estoppel apply?"

[19] Rothbard incidently concedes that some parts of material law cannot even be deduced from his two principles: "for proportionate punishment to be levied we would also have to add more than double so as to compensate the victim in some way for the uncertain and fearful aspects of his particular ordeal. What this extra compensation should be it is impossible to say exactly, but that does not absolve any rational system of punishment — including the one that would apply in the libertarian society — from the problem of working it out as best as one can" (Rothbard 2002/1982, 89).

[20] There is, of course, a world of difference between Hayek's conception of law that has to be formulated by complying with the existing body of general rules, and the anarcho-libertarian pretension of deducing law a priori from certain basic principles.

[21] Rothbard (2002/1982, 91). He does not seem to care that these rules cannot be deduced from his material principles.

[22] See I "Which institutions?" above.

[23] That they accepted the rules of the community when they entered it is a rather weak answer. Which serious observer of the formidable evolution of capitalism would not uphold that rules must frequently be reshaped?

[24] See VIII, Who shall make the rules?

[25] Dun (2003, 34). There is a certain irony in categorizing the classical liberal ideal of the rule of law as abstract rationalism, since, as we have seen, the anarcho-liberal illusion of a systematic law code deduced a priori from two single principles is the very archetype of Cartesian rationalism divorced from reality. In this sense, anarcho-liberalism is much closer to the French Lumières (Descartes, Quesnay, Voltaire) than to the English and Scottish Enlightenment (Adam Ferguson, Adam Smith, Josiah Tucker, Edmund Burke, Bernard Mandeville), whose consciousness of the limits of human reason is the backbone of the methodological and philosophical principles of classical liberalism.

[26] To pretend that for classical liberals such as Hayek a system of law, to be a freedom-promoting system, has only to be general, as most anarcho-libertarians do (see Rothbard 2002/1982, 228), does not make sense: "if our main conclusion is that an individualist order must rest on the enforcement of abstract principles rather than on the enforcement of specific orders, this still leaves open the question of the kind of general rules which we want" (Hayek 1980/1948, 19); quoting L. Duguit: "It is true that such a ‘general' law may be bad and unjust; but its general and abstract formula reduces this danger to a minimum" (Hayek 1960, 210).

[27] Mises (1985/1927, 39). See also p. 58: "Liberalism neither wishes nor can deny that the coercive power of the state and the lawful punishment of criminals are institutions that society could never, under any circumstances, do without"; and p. 116: "We cannot do without the apparatus of government in protecting and preserving the life, liberty, property, and health of the individual"; and, finally, p. 37, the epigraph of this paper: "Liberalism is not anarchism, nor has it anything whatsoever to do with anarchism." The fact that anarcho-liberals have named their main think tank after the author of these unambiguous and repeated condemnations of anarchism reminds us that anarchists truly have a special relationship with the requirements of reality.

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Summary

This paper criticizes the "anarcho-libertarian" theories of American origin which promote anarchist liberal ideas (Murray Rothbard, Hans-Hermann Hoppe, Randy Barnett). If we analyze the libertarian project seriously, we can conclude that its lure is minimal, even, and above all, from the perspective of the value of freedom which founds it. After emphasizing the fatum of all anarchist thinking, we examine four practical shortcomings of the anarcho-libertarian idea. These are the problem of anarcho-libertarian legislation and the foreseeable emergence of anti-liberal legislation, the problem of legal practicability, the probable resurgence of a State, and the disappearance of the minimal guarantees provided by the rule of law. We then look at two major theoretical flaws: the anarcho-libertarian theories of "natural rights" and the project of a "Systematic Libertarian Code of Law" and, finally, the treatment, by anarcho-libertarians, of the crucial political question: "Who makes the rules in the anarcho-libertarian order?"

Zusammenfassung

Dieser Beitrag kritisiert die "anarcho-libertären" Theorien amerikanischer Herkunft, die für anarchisch liberale Gedanken werben (Murray Rothbard, Hans-Hermann Hoppe, Randy Barnett). Wenn wir das libertäre Projekt ernsthaft untersuchen, so können wir daraus folgern, dass sein Reiz minimal ist, selbst, und vor allem, aus der Sicht der freiheitlichen Werte, auf die es basiert. Nach dem hervorheben des Fatums allen anarchischen Denkens, prüfen wir vier faktische Unzulänglichkeiten der anarcho-libertären Idee. Diese wären das Problem der anarcho-libertären Gesetzgebung und das absehbare Entstehen einer anti-liberalen Gesetzgebung, das Problem der rechtlichen Durchführbarkeit, das wahrscheinliche Wiederaufleben eines Staates, und der Schwund der Mindestgarantien gewährleistet durch eine Rechtsstaatlichkeit. Dann sehen wir zwei theoretische Hauptschwachpunkte : die anarcho-libertären Theorien des "natürlichen Rechts" und das Projekt eines "Systematisch Libertären Gesetzbuches" und, letztendlich, der Umgang der Anarcho-Libertären mit der entscheidenden politischen Frage: "Wer bestimmt die Regeln in der anarcho-libertären Ordnung?"  

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