Category Archives: Political Philosophy

Updated: Against Anarchism

Classical Liberalism, Constitution, Founding Fathers, Justice, Law, libertarianism, Political Philosophy, The State, The West

At the beginning of 2004, David J. Heinrich’s responded on the Mises.org Blog to the article titled “The Criminal’s Theoretical Enabler” (WorldNetDaily, January 9). In reply, I penned the comments posted below. The links to our exchange have since expired. But readers will glean from my reply the gist of my difficulties with anarchism. Anarchism is sexy. I used to think of myself as an anarchist. But after careful consideration, I forfeited sexy for the solid position of classical liberalism.

Read “The Criminal’s Theoretical Enabler” first, and then my reply to David:

David wrote that: “What proportional restitution and punishment are would have to be up to the victim to decide, and his or her decisions would be binding…” [End quote]

I have no objections to leaving it up to the victim to forfeit—or choose his own form of—redress for certain misdemeanors. Many legal solutions are a result of mediation and other perfectly private solutions to non-violent offenses.

I object to leaving punishment for violent crime to the vicissitudes of the victim or his proxies. The possibility that a victim or her proxies choose to let a rapist/murderer go free in favor of financial restitution, for instance, is a reality David concedes (although he says it will be rare, which is not the point. It should never happen, not under the state and not under anarchy). Does the forfeiture of just retribution (which is what this arrangement amounts to, in my opinion) not imply, in the case of murder, that the right to life is a right that the victim’s proxies can choose to alienate or relinquish at will? How else does one construe this position?

The danger of reducing justice in cases of such crimes to a negotiated deal strikes me as moral relativism if not a recipe for nihilism. Again: A belief in the immutability of natural justice has prompted me to rethink the wisdom of the private production of defense.

Also ignored, as I say in the column, it that a violent offender presents a clear and present danger to others, and so his fate, at least in a civilized society, is not only the prerogative of the victim.

Libertarian anarchists, and David makes this point, will rightly argue that under a minimal state and certainly under the state today, criminals could and do get away with murder. This is because the justice system is badly broken.

This fact doesn’t strike me as a sufficient reason to support a state of affairs where, as a matter of principle, proportional, moral retribution will not necessarily be the goal of justice. (The kind of justice sought would depend on the victim, right? It is indeed unlikely that she will support unconditional love as an antidote to violent crime, but if she’s of the Left, then it’s a possibility.)

David writes: “If a woman was raped, she could demand proportional restitution (e.g., whatever fines on the criminal necessary for the emotional harm caused her, castration, and the unexpected forced rape of the criminal)”… The criminal would simply be enslaved to the victim (or her punishment agency, more likely, if she didn’t want to deal with him) until repayment had been met…if a court deems that for restitution, the rapist is to pay the victim $1million and be violently raped, and then as punishment is to be executed…” [End quote]

What if the offender dies due to the castration or the forced rape? Is that proportional justice? I don’t conceal my preference for western tradition, nor the positive view I have of the accretive genius of the common law. What David describes here is primitive victim vigilantism. Indeed personalized retaliatory ‘justice’ can and will take the form of vendetta, not justice. Civilized moral retribution should aim to avoid such barbarism. Under anarchism, David’s proposals can be adopted as a matter of principle rather than as an aberration to be rectified.

David says that “The criminal would simply be enslaved to the victim or her punishment agency…” [End quote]

Well, again 1) victims could demand disproportionate punishment, and the enforcement agency would comply. 2) Some victims will not be covered by a “punishment agency.” Who sees to it that justice is achieved in the case of those who cannot afford or don’t want to contract with a private firm? There is no incentive for an agency to pursue a dangerous offender who has not harmed a client. Do we rely on a bunch of good neighbors who will take up arms and hunt the man/woman down? Or do we as a society, through the law, make a public declaration of the few abiding and immutable values we wish to uphold (i.e., he must be brought to justice and tried in a court of law).

To the extent possible, there must be a commitment, however imperfect, to justice for all and not only for those who’ve contracted with an agency.

That’s why, while David and I agree entirely that the criminal justice system is egregious in its attitude to victims, his definition of the private production of defense as “victim-centered” is, I think, misleading.

On David’s comment about (his) anarchy vs. (my) minarchy. I started out as an anarchist. But I had certain doubts about the private production of justice. To date, they have not been addressed. The main issue, and I spoke of it first in a talk I gave to a Libertarian Party convention last year, is that fundamentally different and competing views of justice (right and wrong) will arise in anarchy. It’s inevitable. How does one reconcile this with a view of the immutability of the natural law and the emphasis on the search for truth as the ultimate value of justice? Since my understanding of justice is based on such a view (applied realistically, of course, to facts and context), I can’t accept this.

Again, that we suffer these pitfalls under the state is not a sufficient argument for making this a perfectly appropriate, ‘principled’ option, which would be the case under anarchy.

David alludes to the gap between his position and mine and puts it down to the anarchy/minarchy divide. As I look at it, better to distinguish good from bad arguments than to separate anarchist from minarchist positions. The goal should be to advance just, rights-based positions. If reality is twisted into pretzels so as to fulfill the requirement for theoretical virginity, then, while clever, the argument isn’t necessarily good. (And sometimes maybe the theory itself needs to be questioned.)

—Written by Ilana Mercer, January 10, 2004

Update (May 2, 2008): Are competition and so-called natural co-operation sufficient to keep human venality and evil in check? My experience in the world—and in a community of relatively elevated people, libertarians—would indicate not. While some anarchists are and were profound thinkers, like Murray Rothbard, Lysander Spooner, Hans-Hermann Hoppe, the Tannehills, the contemporary garden variety anarchist is not a serious thinker. In anarchy, many have simply adopted a rah-rah, fist-in-the-air, I’m-so-sexy stance.

Speaking of profound thinkers I’m privileged to know: Can I neglect what economist George Reisman has observed about anarchy? About “competing governments,’ or the purchase and sale of such government services as police, courts, and military in a free market,” Reisman says this:

“As the result of Ayn Rand’s criticisms, I came to the conclusion that the case was untenable, if for no other reason than that it abandoned the distinction between private action and government action and implicitly urged unregulated, uncontrolled government action, i.e., the uncontrolled, unregulated use of physical force. This was the logical implication of treating government as a free business enterprise. I had to conclude that government in the form of a highly regulated, tightly controlled legal monopoly on the use of force, was necessary after all, in order to provide an essential foundation for unregulated, uncontrolled private markets in all goods and services, which would then function totally free of the threat of physical force. This indeed represented nothing more than a return to my starting point. It was what the government established by the United States’ Constitution had represented, and which I had so much admired.”

CONSIDER 9/11. When libertarian anarchists declare that, and I quote, “the proper authority to exercise a right of self defense against an aggressor is the individual whose rights have been violated, or a designated agent,” however charitably one interprets this, the realistic translation is that innocent victims have no rights against terrorists.

Coming from libertarians, most of whom have adopted anarchism, suggestions such as these translate, in reality, as follows: In essence, the aggressor has all the rights because he places himself outside natural and positive, national and international law. The victim, being law-abiding, has no rights, because his only recourse to justice is through the state. Since the state is illegitimate, or rather, since libertarian anarchists see anything the state does as illegitimate (a logical flaw), the realistic application of this cynical sleight of hand is to wave the victim’s right to have any protection or restitution, however inefficient and insufficient. These are the implications of their words. There is no other interpretation.

Against such abstruseness, one cannot avoid wondering how over 2000 people, whose right to life was sundered, go about nominating a proxy to act on their behalf in a manner that will satisfy libertarian legalities. AND IN THIS DYSTOPIAN WORLD, NOT IN UTOPIA. Remember Ayn Rand’s warning about the “sin of abstraction.” About her beliefs, Chris Sciabarra has written: “No human value can be separated from the conditions that make its achievement possible.”

Once again, in practice, the anarchist libertarian ideas of a just war, which I would agree with in theory, ruled out any action against al Qaida after 9/11. Roy A. Childs Jr. came to the same conclusion as I have come and recanted anarchism in his last years. “It has led too many libertarians away from reality,” he wrote, “and, indeed, seen them on a collision course with it.”

This nation has the proudest of histories. America hails from classical liberalism. We need to distance the current Third-Way social democracy from the long-lost republic and, in that way, revive classical liberalism. As a strategy for going forward, I suggest we draw on this history. Right now, with the influence of anarchists, there is a kind of destructive, infantile anti-authoritarian attitude toward this history.

Many anarchists like to say that there’s nothing libertarian about the U.S. Constitution. I’ll admit to preferring the Articles of Confederation, which were usurped in favor of the Constitution at the Philadelphia convention. But I prefer to say this: To the extent that the Constitution is compatible with the natural law, it’s good; to the extent it isn’t, it’s not. There is a lot wrong with the Constitution, as Rand, a minarchist, also conceded.

Still, disparaging the greatest revolutionaries—politically and philosophically—ever, the American Revolutionaries, is yet another element of a stark, ahistoric worldview rife among many libertarians. Our hope for restoring liberty in the US rests not on obscure references to anarchy and utopia, but on the great tradition from which this nation has sprung.

Anarchists currently make their case with wacky references to examples of anarcho-capitalism in small homogeneous societies—Medieval Viking Age Iceland. Or, even less convincingly among some murderous tribes in Africa. For some loopy reason, they prefer this no-man’s la-la land to the followers of John Locke. This tendency to go off the deep end is precisely what I mean when I equate anarchism with the triumph of sexy and showy.

What The EU Has Done To British Sovereignty

Britain, Conspiracy, EU, Europe, Political Philosophy

Some say a North American Union à la the EU is a conspiracy theory. The people who say so have a nasty tendency of looking down on “bitter” types who prefer guns and god to the goons in government.

In contrast to deniers such as Michael Medved, there are authentic, credible conservatives like Phyllis Schlafly and Pat Buchanan who say the supra-state under construction is real, and is being covered-up.

In “Adieu to the Evil EU,” I explained a thing or two to the O’Reillys of the world who had been heaping scorn on the French for rejecting the centralized state American neocons were applauding at the time.

Here are some of the effects on the UK of joining the EU. O’Reilly and his fellow Fixers may find them appealing. As will Kaiser-in-Waiting, McCain:

“The effects of EU membership are complicated and have worked in part in conjunction with other international influences, primarily the incorporation into British law of the European Convention on Human Rights. EU law has taken primacy over UK law. As a result, Parliament is no longer what it was. While, in British constitutional tradition, Parliament could decide as it wanted, Parliament can now decide as it wants only provided that what it wants is in conformity with EU law. As a result, writes King, ‘British government today is shackled government to a far greater degree than it used to be’”.

“But that is only the beginning of the story. With European law comes also the European Court of Justice. British citizens can take the British government to court in Europe, and the European Court can find against the British government even if it is acting in accordance with British law. Furthermore, British citizens can take the British government to court in Britain on incompatibility between UK and EU law, and British courts can declare UK laws inoperable with reference to EU law. The same applies to human rights and the European Court of Human Rights. British citizens can appeal, in Britain or Europe, to a law that stands above laws enacted by their own Parliament. This represents a double transfer of power: from British elected to international non-elected institutions, and in Britain from Parliament to the courts. The courts have been handed a set of super-laws which they can use to test the validity of laws passed in Parliament, and thereby the power to override the will of Parliament.”

“The scope for judicial review by the courts has thereby been radically extended. But even that is not the end of it. With its new powers, the judiciary woke up from ‘a long sleep’, started to assert itself, and the senior judges metamorphosed into a political class of activists. The old doctrine that the courts only interpreted the law was thrown out in favour of a new doctrine by which the courts explicitly make law. ‘No one’, wrote Lord Denning, ‘can tell what the law is until the courts decide it.’ Judges were no longer only judges, but threw themselves into public debate, felt free to criticize lawmakers and ministers, chaired all kinds of commissions and so on. Under John Major, ‘war broke out between senior ministers and senior judges’”.

Election Briefs (March 4)

Elections 2008, Political Philosophy

* Stretch out on the Freudian chaise lounge, and free-associate the word “McCain.” The first refrain to come to mind is POW. It’s the same reflex Rudy honed in his interlocutors after 9/11. You could sleep-walk the “Rudy/9/11” refrain. I don’t think I can take 4 years of the McCain mantra. It might be easier to abhor Obama.

* Care to hazard a guess as to the reason for the obsessive calls for candidates who aren’t winning to quit? What is it with the media and other members of the chattering class out there, who cannot tolerate discordant, fractious voices, or competition in government? Words such as “spoiler” should be scorned in this context. Ditto “to unify the party.” The idea that a campaigner should slink away with his tail between his legs so as not to steal votes from the bigger tickets, or sow confusion—that’s contemptible. The greater the political chaos, the greater the chance for real political change. Oh, I get it, the Media-Military-Congressional-Industrial Complex craves consensus. In this way, positions as gate-keepers of permissible opinion are secured.

Update: Media clucked about the need for Hillary to bow out for the reasons enumerated above. What do you know; she won big in Texas, Ohio, and Rhode Island. The New York Times is still using moribund terminology to describe her gains. Apparently, she is barely keeping her candidacy alive. Let’s wait and see.

Although finality has yet to be reached on the Democratic front, the same consensus-seekers can at least rejoice in Huckabee’s quitting.

Diablo’s Birthday

Constitution, Federalism, Political Philosophy

“Feb. 12 ought to mark the birthday not of an American icon, but of a man whose name should live on in infamy. If Americans want to reclaim their moral character as a nation, they will have to confront and denounce ‘The Real Lincoln,’ who carried out a violent constitutional revolution (instead of pursuing peaceful emancipation like every other nation did), a revolution, which, in turn, sired the modern imperialist, interventionist and highly centralized American State.

Let’s imagine, as the Lincoln-louts claim, that the Constitution ratified in 1788 forbade peaceful secession and authorized the federal government, which was supposed to have limited powers delegated to it by the people, to invade and occupy any seceding state, declare martial law, subdue the secessionists by force, burn and ransack entire cities, and then establish a military dictatorship over those states for a dozen years.

Let’s pretend that it was constitutional to intentionally wage war on civilians, blacks included, to imprison without trial thousands of Northern citizens, jail, even execute people who refused to take a loyalty oath to Lord Lincoln, shut down hundreds of opposition newspapers, incarcerating editors and owners, and generally suspend the Bill of Rights, the writ of habeas corpus and international law.

If it endorsed, or even accommodated what Lincoln did, including his ignoring of the Ninth and Tenth Amendments, and his violating of the Second, then the Constitution is categorically evil and self-contradictory.”