Private Law Enforcement: The Two Farms Revisited

Private property, liberty, and the right of free association all go hand-in-hand. It is a mistake to think that civil liberty and economic liberty are opposed; they both spring forth from the same fountainhead of liberty. The following piece addresses secession and the natural outcome of secession from a governmental body; the enforcement of law without a state.

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Secession is the natural and logical extension of the right of association. Mises defines this as:

“The right of self-determination in regard to the question of membership in a state thus means: whenever the inhabitants of a particular territory, whether it be a single village, a whole district, or a series of adjacent districts, make it known, by a freely conducted plebiscite, that they no longer wish to remain united to the state to which they belong at the time, but wish either to form an independent state or to attach themselves to some other state, their wishes are to be respected and complied with. This is the only feasible and effective way of preventing revolutions and civil and international wars.”

If people secede from a government that means they withdraw from its various forms of inefficient, obtuse forms of law enforcement and peace keeping. What’s the option for people who want to settle disputes in such a society? The option is private security, which can take multiple forms. I would do those various forms injustice if I attempted to briefly summarize them here, so instead I’ll give links to examples of stateless law enforcement in security.

Here is a discussion about stateless, competitive law in Viking-era Iceland:
http://archive.lewrockwell.com/orig3/long1.html

This paper discusses enforcement of private property in Celtic law:
https://mises.org/journals/jls/1_2/1_2_1.pdf

And lastly we have a discussion about Xeer, the traditional private law of the Somali:
http://mises.org/daily/2701

There’s also the potential for non-traditional forms of private security that would exist in places without traditional systems. To know more about those forms of private security, read the following pieces.

The first political philosopher to write about privatizing law enforcement, Gustave de Molinari, discusses the production of law enforcement in a modern society in this work:
http://library.mises.org/books/Gustave%20de%20Molinari/The%20Production%20of%20Security.pdf

In more recent times, Hans-Hermann Hoppe discusses insurance companies producing private security in a stateless society:
https://mises.org/daily/5270

As you can see, private law enforcement is nothing new nor is it even all that radical. People could make their cases about first appropriation without the need for public courts and there would even be competition between private courts to discover the best forms of law enforcement. Indeed, due to the competition between companies we’d likely see an increased quality of law enforcement at increasingly lower costs. This is the opposite of the case now, where there is no incentive for government to provide better law enforcement at a low cost due to monopoly.

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Going back to the hypothetical farms, let’s say each farm owner claims that they own the land of the other. Each claims that their ancestors worked the land first and passed the deeds down the generations to them. In a stateless society, there are many options as I have just described. It’s possible that each would file a claim with their respective companies and then the companies would determine ownership based on the evidence provided. There’s also the possibility that the sons would go to regional elders or their respective Goðar to get it figured out, depending on tradition. In any case, there would little incentive for violence or theft, due to the high costs involved.

This is also the case if one son says the other son is using land that is rightfully his and then expects compensation for loss of property. If the son who files for compensation has proof that he owns the land due to his ancestral land title, he will file the claim with the appropriate entity and then that entity will contact the other son’s representative. The key to all this is that one son can prove, beyond doubt, that specific plots of land are his. Without some form of deed, title, or certificate, such a claim would be hard to fulfill. In a stateless society, families would likely take far more care when it comes to crafting wills and keeping property titles secure for further generations.

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If you take anything away from this, it ought to be the following. In a state where there is a monopoly on law, people will only have one option. Regardless of how good or bad that option may be, they will only have that single recourse. In a stateless society, many forms of law enforcement are possible, likely with a great deal of overlap in a single region. People will have more options that will be suited to their individual needs, and those options will likely be better and cheaper than what we see now.

A Tale of Two Farms

I am often asked how a stateless society would look and operate. If there was no government, how would law operate? How would people dispute claims without violence? Here is one such example given to me, so that I may discuss such points.

"You and I own two farms. There's a spring that begins in my land and then flows to yours. You and I have a standing agreement that I won't do anything to the water, since your farm depends on it. We both pass the farms on to our sons. Your son decides to continue farming, while my son never learned how. Instead, he blocks up the spring and starts bottling the water to sell. Without this spring, your son's farm is unsustainable as there are no other natural or nearby water sources or means of pumping in more. 

In this example, my son's rights have come into conflict with yours. The spring is on my son's land, and he is rejecting an contract he never agreed to. However, by doing so he has limited what your son can do with his property, thereby passively deciding for him he can no longer farm his own land. Neither son has done anything outside of their rightful property, but by exercising his right to do whatever he wants on his property, he has taken the right for your son to do the same."

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Let me begin by stating that there has always been difficulty for political philosophers, though especially libertarians, in determining rights to water and air because of their unique characteristics. But here is my understanding of the solution, as I’ve learned from reading the works of Murray Rothbard. When it comes to land disputes, we need to understand the dispute from a perspective of appropriation, also called “first-ownership-to-first-user”. So in this hypothetical, the son who dams up the river is indeed in the right. His father owned it and passed it along to him, thereby making it his. But this doesn’t actually result in a conflict of rights. The son who was merely using the river did not own it; he was allowed to use the river by the owner. Such a revoking of privilege can happen, especially if there are no precise contracts to prevent its use from being at-will. Thus the son who owns the river wouldn’t be encroaching upon the rights of the farming son; the latter technically does not own the land and only may farm out of the kindness of the river owner (as there is no contract).

Your three options of resolutions amount to: sale of water, communal shame, and violence. Options 1 and 2 are viable in a voluntary society. This is essentially what happens in most of the United States nowadays, where people pay companies to use water. A private owner or companies would change prices arbitrarily but then they would likely suffer loss of a customer base due to failure to compete. Shame is also an important force in a land with minimal laws. If a person does something immoral or is generally an unsavory person, other members of the community can boycott him and pressure him to change his ways or cut him off from goods and services. He would have less people to sell the water to. Option 3, on the other hand, would be unacceptable. Even if they successfully stole the water source, there’s no saying that the son wouldn’t get it back through private law enforcement. 

With that in mind, what options do the sons have in a voluntary society? There are other options that you have yet to consider. Option 4 would be an exchange of goods and services. The son who is using the water to sell could still need produce, as he does not farm. In that case he could pipe in water to the farmer in exchange for crops. Option 5 would be purchasing the water source. The farmer could form a corporation with other farmers and buy the water source from the son who owns it. Option 6 would be that the farmer finds a new supply of water. This could be another water owner or it could be that the farmer surveys the region to find a nearby source to irrigate. So you see, there are other options aside from a monopoly of force. A free market society, by its nature, would favor cooperation and business rather than naked force. There’s no need for obtuse social contracts when you have legitimate, explicit contracts between mutually benefiting individuals.

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An important principle, one that I have touched upon, is that of homesteading. This is the "first-ownership-to-first-user" idea I mentioned previously. To discuss homesteading further, I’ve chosen a quote that summaries it very well:

“For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the “homestead” principle).”

In cases involving private land disputes, it’s quite easy to apply. The question isn’t who is currently using the land but who used the land first. The public property disputes are harder because public property, being a quagmire itself, muddles everything up. Private land disputes are easier because we just have to look at who first appropriated the land. Once we found out who appropriated the land first, we would know its rightful owner. Enforcement would fall upon private entities, either companies or individuals. 

So let’s build upon the farm example to illustrate this. There are the two families as before, with their farming disputes. Your son makes part of his land into a golf course and my son uses his land for grazing. The homestead principle is clear on what would happen if my son destroyed the other son’s property through the grazing of cattle: the cattle grazing son would be liable for property damage. You could argue that the golf course was being used for anything and therefore the son owning it would lose title to the land, but I cannot agree with such an argument. It doesn’t matter if the golf course is being used or not; the land was still appropriated first by the family of the golf course owner.

The idleness of the land is irrelevant and doesn’t void the title to the land. Active use of the land, in some form or another, is what produces the ownership in the first place but it doesn’t need to be present continually to keep that land. Consider the alternatives. If active use is what dictates continued land ownership, then you couldn’t leave your land for long out of fear of having it taken by another. If your family had an ancestral home in another city, it could be easily snatched up if no one was attending to that land. You also would have a hard time owning plots of land as a landlord, if you’re waiting for the right moment to develop it into an apartment complex or something like that.

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In the situation outlined above, cooperation and profit-seeking would solve the problems. If the rancher wants more land for grazing, he could buy up sections of property from the other son. Or he could strike up a bargain where his cattle have free access to both plots of land, in exchange for a percentage of meat. He could also go in the entirely different direction for his grazing, either buying or appropriating land in those areas as is required. There is no need for destruction or violence in those scenarios, which is more than can be said for the modern state and its monopoly of force.

The Bundy Family Problem

The following piece has been edited from its original form as a series of shorter writings.

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The problem of the federal theft of the Bundy family's land, as far as I know, is one of theft. The problem has been muddled on account of the fallacy of public property, but indeed it is theft pure and simple. 

A state cannot sign away the rights of a citizen, except as punishment for some crime. Even in that situation it’s shaky because the accused criminal is being held to laws that he did not consent to abide by. In the instance of living under a state that has not been formed voluntarily, even the revoking of exercising rights in response to a crime cannot be said to be moral for that reason. If it were said to be moral, then a citizen could be locked up or killed on any number of arbitrary political laws made by an unaccountable state. In the instance of living in a voluntary society, a person would be given the choice to either abide by certain laws or leave or secede depending on the case. Thus it is clear that even if the constitution allowed the federal government to encroach upon this man’s rights, it would not be legal or just. The constitution, as good as it is, is not perfect and even some of the Founding Fathers knew this.

You may ask who determines which rights are irrevocable. In general, human rights are seen as irrevocable because they come from nature (or a God). Generally speaking, as a radical libertarian, irrevocable rights are those that directly proceed from the right of private property. Specifically, in this case, self-ownership. This determination is from observing human nature and the application of logic to that observation. While I don’t have the space to write a whole defense of that, I’ll summarize it as the following. People own themselves; this is self-evident fact. From that fact, we can determine that people have the right to: life, liberty, and property. If you kill someone, you are destroying their property. If you take away someone’s freedom, you limit what they can do with their property. If people own themselves, they may use themselves as they see fit. The principle of homesteading also comes from this.

You ask about the best way for an individual or group to respond to unjust law. Both ways can work, though in different ways. Sometimes it is effective to use existing avenues but then moral problems arise. In that case, you’re demonstrating the legitimacy of that false system of law by cooperating with it. So that method can work, though I don’t think it is the most beneficial way. Perhaps that method is best for addressing small problems on the local level, where such legal actions may be most effective. I think the best way, the most beneficial way overall, is to withdraw all forms of support for that government. This means active obstruction, finding ways to stop paying taxes, active law breaking en masse, and in general any form of seceding from that institution.

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In the Bundy situation, the problem is muddled by both Bundy and the governments of Nevada and the US as a whole. Bundy ought to understand that his grazing land isn’t the property of Nevada; it’s his family’s property through homesteading. But he instead makes it about Nevada public property, which exposes him to the hypocrisies in that article. By aligning with Nevada, he aligns with a state government that thought it could throw away the rights of its citizens to the federal government. And the federal government, as we saw in the War Between the States, is always more than happy to crush human rights when the opportunity is available.

It’s a case where all parties involved are wrong. Bundy has the land rights because of family homesteading, not because of Nevada. Nevada can’t make binding, perpetual agreements that thwart the rights of all its citizens; at most it could only enforce an agreement amongst those who agreed to it at that moment. The federal government can’t enforce those agreements either, for the same reasons. A good political philosopher to read on this topic is a man named Lysander Spooner, who ran a competing postal service in the mid 19th century until the federal government forced him to stop. 

Now moving from a specific case to a more general one, I ask, who is the community? We have to be suspicious when we see people use the terms “society”, “community”, “the nation”, “a culture”, and so forth. These terms can be convenient short-hands for groups of people but they cannot be understood as actual entities that decide upon laws or behaviors. A community doesn’t decide upon an action or an agreement; only certain individual human beings do that. So individuals in an area can agree to a contract but they cannot enforce that contract on people who didn’t agree to it, even if it may or may not benefit them. If such enforcement happened, it would encroach on the rights of those who didn’t agree to it, especially if it were enforced perpetually on whole generations of people who weren’t even alive when that happened. It is for this reason that secession is so vital to the freedom of minorities and other small groups of people who would dissent against a majority. The next time someone equates secession with bigotry or hatred of minorities, remind them of what I have said here.

Past Creating Future

One of the most closely guarded secrets of magic is that the past creates the future and yet the present can change the past. It is no betrayal for me to publicly state this secret, for it is a secret guarded by the nature of man. Only a man's own power, will, and experiential knowledge can unlock it's gates. And this is true of other esoteric secrets as well; one could paint esoteric knowledge on a billboard and still keep it secret.

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Here begins my writings on political philosophy. As I contemplate time and the world before me, the latter in constant flux due to the former, I consider my own past in regards to my political positions. One criticism of the philosopher Friedrich Wilhelm Nietzsche is that his views and definitions change with nearly every passing book. But I say this is no fault; it shows growth and continual power. It is in that manner that I view my own progression of political positions.

When I was in highschool, I often flirted with communism. When I read Marx and certain French political philosophers, I found myself drawn to the idea of a communal existence. With my distrust of authority, I thought that the world would be better if the people themselves were the government of their own villages. But I always couldn't help but notice that such an end goal never seemed to be accomplished, and that governments always seemed strongest and most permanent in that middle transition from capitalism to communistic village. Furthermore, in is within that transition that horrible atrocities occur in the name of a utopia.

By the time I was in college, I had moved onto the position that societies needed to be formed and maintained on a mutually agreed upon basis. I came to this realization after insights gleamed from life experience and history. As I talked to more and more self-proclaimed advocates of the people, I realized more and more that they were either little big men or emasculated intellectuals. Both types harbor the will of murderers, thieves, and dictators. And indeed, this may be why no society has survived the violence of the ever-so-permanent transition from socialism to communism. As I opened the tomes of history, however, I saw alternatives to the death-mongers of the socialist and communist bandwagons.

People say that magic can be found in books. This is false. But one can create magic from books, and what better place to find these books than a good library? There I found examples of constitutional republics and truly democratic tribal societies (as opposed to false democracies found today). My gaze passed from would-be revolutionaries and fell upon great peoples; colonial-era Germanic and Celtic peoples, Icelandic vikings, pagan Irish, and masked farmers in the hills of Chiapas. While these people may not have been perfect or libertarian by any means, at least I started to find alternatives. And alternatives are good, at the least, for getting the wheels of the mind turning.

When I was posted in Zambia I began to truly see the need for such alternatives. Many in Africa blame the whites for the motherland's modern problems. But this is a cop-out, since the truth is hard to swallow, and no men enjoy walking through thorny bush. The problem of the African nations is that there are centralized powers attempting to buy off, control, and dictate the very lives of their citizens. The African nations, in general, attempted to replace the colonial powers that conquered their tribes. They didn't consider dismantling those colonial powers; they only considered replacing white rulers with black ones. The result is that they fell prey to the exact same pitfall that ruined the whites; the continental European idea that society is an artificial construct to be molded by little big men and intellectuals in power. In short: they too succumbed to the might of the state and the economic folly of socialism. The difference between the Africans and Europeans, however, is that the latter has experience using the state to lord over citizenry. The former, on the other hand, has neither the experience nor the tradition of it, and unsurprisingly has all the horrors of the state and little of the supposed benefits.

It took the heat and isolation of Texas to allow myself to fully overcome all resistance that stopped me from embracing a radically free market position. It is now my position that everything must be privatized for liberty to truly flourish. In achieving that goal, we in the United States would also enjoy a transitional constitutional republic that far exceeded the one originally crafted by the Founding Fathers. I say this because such privatization wouldn't be immediate; it would likely be piecemeal and punctuated as groups of people withdraw their consent from the state. And this withdrawal of consent, this secession from the government, originates from the right of self-ownership, which I elaborate upon further in an upcoming post.

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This blog will serve two purposes. First it will be a more permanent way for me to keep track of my own writings on this topic. Second it is my intention that the ideas discussed here will act as a springboard for others who still grapple with their own political positions. As my own tale demonstrated, people can change their positions as new information becomes available. If my writings contain such information and help a few out along their paths, then the work will be well worth it.

In passing, however, I also ought to add that these writings will be from the perspective of one who is not Christian in any sense of the word. As such, certain ideas, topics, or forms of writing may be difficult to understand for people who are not magicians or pagans. To those people, all I can say is this: try your best.