Liberty Matters

Wrestling with Levy’s Questions

In predictably thoughtful and careful fashion, Jacob Levy pushes us to reflect and wonder and puzzle over our assumptions.
Toward the end of his most recent essay, he poses two difficult questions for those, like me, who believe that a stateless legal order provides a secure context for the display and protection of liberty and human diversity:
I want to engage briefly with these questions.
(1) Without a state, what restrains the group elites from choosing cartelization over competition, and devoting their efforts to stamping out the interstices, the better to enable them all to prey on their captive members?
The same question arises, with even greater force, when a state does exist. For a state provides such an obvious magnet for those who seek privilege and who hope to avoid the pressures imposed by a competitive marketplace, pressures that compel even the misanthropic to serve consumers’ needs. The state is not a source of restraint on cartelization, but, rather, both an instance of cartelization—since it prevents consumers from relying on alternative providers of law and dispute resolution—and a means of cartelization—since it is able, in ways nonterritorial providers of dispute-resolution services would not be, to confer monopoly privileges on its cronies.
And note that, if the state is to resist cartelization, this will be either because norms of fairness and similar moral constraints limit what state actors can do or because the costs of claiming privileges or conferring them on cronies are too high. Both of these sorts of constraints could be expected to obtain in the case of legal regimes in a society without the state.
Consider two possibilities.
(a) Most people embrace with relative sincerity, at least most of the time, the legal ecology of a stateless society. That is, they recognize, embrace, and support the system of institutions responsible for maintaining order in such a society. They value not only their own regimes and their own positions in legal disputes but also the constitution, if you will, of the society—the underlying framework of basic rules on the basis of which the legitimacy of dispute-resolution institutions can be assessed.[39] This sort of basic loyalty to the constitution—the sort of thing on which proponents of state authority seem consistently to rely—would lead people to support institutions that impeded efforts designed to cartelize the provision of dispute-resolution services in particular. It would do so both because such efforts would violate people’s basic rights and because they would deprive people of the benefits of the stateless society’s legal ecology. Noncooperation with cartelization efforts and active support of institutions that could be expected to resist such efforts would both, therefore, restrain cartelizing mischief by elites in such a setting(b) Many people reason like pure Hobbesian agents—open to predation but avoiding it because of its costs. Such agents would still have reason to favor the legal ecology of a stateless society featuring competing legal regimes because such an ecology would benefit them as consumers. Of course, they might be delighted to impose their will in predatory fashion on others. But they would have every reason to resist elite groups that sought to treat them in predatory fashion. And their resistance could be expected to raise the costs of predation sufficiently that elites might grudgingly avoid it.
Both moderately moral agents—ones certainly no more moral than those needed to sustain a constitutional state—and potentially rapacious ones, then, would likely restrain cartelizing mischief in the part of elites.
(2) If a state is really the only thing that allows elites to cartelize in such a fashion, why would they not create one?
My answer to this question should be apparent: because those they seek to transform into their subjects will not regard them as legitimate, will not obey them, and will actively resist them. Once the mystique of state authority has been stripped away, elites will find it difficult to convince their intended prey that their attempts to rule are legitimate or necessary, so they will have little choice but to attempt to rule by force. And, in so doing, it seems as if they will meet with resistance from those who would prefer to avoid being exploited—both those who reject exploitation as immoral and also from those who simply say “no” to it on prudential grounds. Elites will seek to create states for their cartelizing benefits; but creating a state is a difficult business when those who are to be subject to it see it as neither legitimate nor necessary.
[39.] Cp. Roderick T. Long, “Market Anarchism as Constitutionalism,” Anarchism/Minarchism: Is a Government Part of a Free County, ed. Long and Tibor Machan (Aldershot: Ashgate 2008) 133-54.