by Lew Rockwell, Lew Rockwell:
The election is upon us. We wonder whether we have to have war, tariffs, and deficit spending, regardless of whom we support. What are we to do? Faced with the intractable problems of misgovernment, we need to look deeper. Following the great Murray Rothbard, we should ask, do we need a State at all? Rothbard’s answer was a clear “No.” And not only do we not need a State; the State is a menace.
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Following Franz Oppenheimer and Albert Jay Nock, Rothbard identified the State as a predatory organism. It is the “organization of the political means.” The State produces nothing by itself but takes what other people have produced. Froom this we can deduce a vital fact. Society must have existed before the State. Otherwise, there would be nothing for the State to take.
But you may wonder, how is this possible? Whatever its defects, don’t we need a State to ensure that we have law and order? If we have property rights, don’t we need a legal order defining these rights? The answer is that we do need law and order, and we do need a legal system. But people can establish law and order without the State.
We know this because in any society that consists of a small group of people, certain conventions will naturally tend to arise. People will agree that they shouldn’t kill or assault each other. Otherwise, they couldn’t survive. They will also agree that they need private property, and a simple rule will naturally suggest itself: The first user of unowned land becomes the owner.
What happens, though, if there are disputes over who the first user was or about the boundaries of the land that has been acquired by the first user? The disputants will seek an impartial arbitrator, whose decisions will be respected. After a while, certain natural leaders will emerge from among these judges. But they won’t constitute a State, because they lack the power to extract resources through taxation.
The eminent Rothbardian philosopher and social thinker Hans-Hermann Hoppe gives a good account of this process, describing how rules and judges emerge naturally: “What people would most likely accept as a solution, then, I suggest, is this: Everyone is, first-off or prima facie, presumed to be the owner — endowed with the right of exclusive control — of all those goods that he already, in fact, and so far undisputed, controls and possesses. This is the starting point. As their possessor, he has, prima facie, a better claim to the things in question than anyone else who does not control and does not possess these goods — and consequently, if someone else interferes with the possessor’s control of such goods, then this person is prima facie in the wrong and the burden of proof, that is to show otherwise, is on him. However, as this last qualification already shows, present possession is not sufficient to be in the right. There is a presumption in favor of the first, actual possessor, and the demonstration of who has actual control or who took first control of something stands always at the beginning of an attempt at conflict resolution (because, to reiterate, every conflict is a conflict between someone who already controls something and someone else who wants to do so instead). But there are exceptions to this rule. The actual possessor of a good is not its rightful owner, if someone else can demonstrate that the good in question had been previously controlled by him and was taken away from him against his will and consent — that it was stolen or robbed from him — by the current possessor. If he can demonstrate this, then ownership reverts back to him.
What is lacking in actual conflicts is not the absence of law, lawlessness, but only the absence of an agreement on the facts. And the need for judges and conflict arbitrators, then, is not a need for law-making, but a need for fact-finding and the application of given law to individual cases and specific situations. Put somewhat differently: the deliberations will result in the insight that laws are not to be made but given to be discovered, and that the task of the judge is only and exclusively that of applying given law to established or to be established facts. Assuming then a demand on the part of conflicting parties for specialized judges, arbitrators, and peacemakers, not to make law but to apply given law, to whom will people turn to satisfy this demand? Obviously, they will not turn to just anyone, because most people do not have the intellectual ability or the character necessary to make for a quality judge and most people’s words, then, have no authority and little if any chance of being listened to, respected and enforced. Instead, in order to settle their conflicts and to have the settlement lastingly recognized and respected by others, they will turn to natural authorities, to members of the natural aristocracy.”
