ANARCHISM AS CONSTITUTIONALISM Roderick T. Long Auburn University | Molinari Institute | Center for a Stateless Society.

ANARCHISM AS

CONSTITUTIONALISM

Roderick T. LongAuburn University | Molinari Institute | Center for a

Stateless Society

WHY PIZZA HAS NO PLACE IN A FREE SOCIETY

ANARCHISM AS

CONSTITUTIONALISM

Roderick T. LongAuburn University | Molinari Institute | Center for a

Stateless Society

Minarchist Objection to Anarchy

The use of force must be placed under constitutional constraints

What Are Constitutional Constraints?

Guarantees contained in a written document?


The Soviet Constitution guaranteed:• freedom of speech,

press, religion, and assembly

• inviolability of one’s person, home, and private correspondence


So obviously, mere assurances of freedom in a written constitution are no guarantee that such promises will be kept in practice


The United Kingdom, by contrast, has no written constitution


Yet despite its flawed record, the UK government respects the aforementioned rights more reliably than the Soviet government did


So not only are paper prohibitions not sufficient to safeguard liberty, they seem not to be necessary either


The term “constitution” has an older meaning: not a written document, but rather the incentives, practices, and incentive structures according to which a society’s political system works


This is what the ancient Greeks meant when they compared the “constitutions” of Athens, Sparta, Carthage, etc. This is also the sense in which people refer to the “British Constitution”


This is the kind of “constitution” that a free society needs For market anarchists, competition in security provision represents constitutional structures like separation of powers and checks and balances taken to their logical limit


By contrast, the kind of “separation of powers” and “checks and balances” offered by governmental constitutions represent only an Oskar-Lange-style simulation of competition within a monopolistic context


The problem with governmental versions of “separation of powers” and “checks and balances” is that without free entry by new competitors, there is no safeguard against collusion among the existing branches


“The future thus belongs neither to the absorption of society by the State ... nor to the suppression of the State ... but to the diffusion of the State within society.” – Gustave de Molinari


But note that a “constitution” in the structural sense has no existence independent of the actual behaviour and interactions of actual human beings


It’s a mistake – a metaphysical illusion – to think of constitutional restraints as structures existing in their own right, as external limitations on society as a whole


Instead, constitutions are ongoing patterns of behaviour, and persist only so long as they are continually maintained in existence by human agents acting in systematic ways


“The state is a relationship between human beings, a way by which people relate to one another; and one destroys it by entering into other relationships, by behaving differently to one another.” – Gustav Landauer, 1910


“Any interpretation still hangs in the air along with what it interprets, and cannot give it any support.” – Ludwig Wittgenstein

(In other words, there cannot be a self-applying rule.)

Anarchistic Political Structure

The assumption that a legal framework must be (or even can be) external to what it constrains tends to make political structure invisible except when realised in familiar state-monopoly institutions


This explains why a single unsuccessful or undesirable example of a stateless society is treated as refuting anarchism, whereas no one thinks that a single unsuccessful or undesirable example of a state refutes statism


The implicit thought is that states differ from one another in their political structures, so the failure of one type of state proves nothing against other types of state


Anarchies, by contrast, are all assumed to be structurally alike – that is, structureless – and so the failure of one indicts them all


But in fact nothing prevents anarchies from differing from one another institutionally, culturally, etc. and so being structurally diverse


That’s one reason that anarchist activism needs to involve cultural advocacy and institution-building, not just calls to end the state


Since every pattern of social interaction depends for its continued existence on the choices of voluntary agents, no such pattern is automatically guaranteed to be self-perpetuating


But some patterns give their participants greater incentive to continue interacting according to the relevant pattern, and so will tend to be more stable

Illusions of Circularity

One variant of the minarchist objection says: a functioning market presupposes a functioning legal order (secure property titles, etc.) and so cannot provide that order


One could as well (or as badly) argue that a functioning legal order requires food, shelter, and other economic productivity and so presupposes a functioning market


In fact the two grow up together: “light dawns slowly over the whole,” to borrow a Wittgensteinian phrase

Illusions of Finality

Another version of the external-constraint fallacy is the “legal finality” objection to anarchism offered by Randians like Robert Bidinotto


Bidinotto asks: under anarchy, what makes market actors agree to submit their disputes to arbitration and abide by the results?


In the U.S., the Supreme Court is the “final court of appeal”; but under anarchy there’s no final arbiter and so disputes can go unresolved indefinitely


Response: what “makes” people agree to arbitration under anarchy is the same thing that “makes” them agree to arbitration under a state: incentive structures


Specifically, under market anarchy those law providers who are most successful at figuring out effective incentives will win out in economic competition


As Étienne de la Boétie points out in Discourse of Voluntary Servitude, the rulers are always outnumbered by the ruled and so cannot compel them by sheer physical might


(Unless this guy is the ruler – but he isn’t)


Hence every legal system – state-based ones as much as stateless ones – depends for its functioning on people’s ongoing acquiescence


For example, the Supreme Court’s role as “final arbiter” is nowhere mentioned in the U.S. Constitution


That document says nothing about how disputes between different branches of the federal government are to be settled Case in point: Andrew Jackson and the Cherokee removal


It also says nothing about how disputes between the federal government and the states are to be settled, including whether states can secede Case in point: the U.S. Civil War


If the Supreme Court is recognised as a final court of appeal now, it’s not because of some rule in the Constitution – nor because some Chief Justice had super-powers – but rather because of acquiescence in evolving norms


But the Supreme Court is not really a “final arbiter,” because Congress can get around its rulings by passing new laws or even amending the Constitution


Nor is Congress the final arbiter, since its ordinary decisions can be struck down by the Supreme Court or vetoed by the President


Nor is the President the final arbiter, since he can be impeached


Even an absolute dictator isn’t a final arbiter, since, again, unless he hails from Krypton, he has power only so long as most of the rest of us play along


Under anarchy, can disputes go unresolved indefinitely?

Only in the same sense as under government


• If a lower court rules against me, I can appeal to a higher court

• If the highest court rules against me, I can petition Congress to change the law


• If Congress refuses I can work to get different representatives elected (or different judges appointed)

• If that fails, I can try to foment a revolution


All of these are possible – but they’re tiring, and most disputes, most of the time, will run out of steam before proceeding through all these stages Under anarchy, where appeals are generally horizontal rather than vertical, the same is true


As regards “legal finality,” we need to distinguish between Platonic legal finality and realistic legal finality


Platonic finality: an absolute guarantee that every dispute will be decisively settled without any possibility of being revived


Realistic finality:the tendency in practice for most disputes to be brought to an end fairly reliably


Anarchy can’t provide Platonic finality

but neither can govrnment


Government can provide realistic finality

but so can anarchy


Moreover, anarchy can do it more efficiently, since it lacks the incentival and informational perversities associated with monopoly ...


... and more justly, because its legal institutions don’t have to exempt themselves from rules they apply to everyone else

The Payoff

If a legal system is a pattern of social interaction rather than an external constraint, then we don’t need to seize control of the state (whether by electoral or revolutionary means) to bring about anarchy

The Payoff

Instead, we can change the pattern of social interaction by building alternative institutions and winning people’s affiliation to those institutions rather than to the state

The Payoff

The State is one problem that really will go away if enough of us ignore it

Where to Learn More

c4ss.org

s4ss.org

molinari.co

ANARCHISM AS CONSTITUTIONALISM Roderick T. Long Auburn University | Molinari Institute | Center for a Stateless Society.

Documents

constitutional constraints

constitutional structures

constitutional restraints

written constitution

soviet constitution

kind of constitution

term constitution

british constitution