[The State] forbids private murder, but itself organizes murder on a colossal scale. It punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or alien.
—Albert Jay Nock, 1928, On Doing the Right Thing
LIBERTARIANISM AND THE STATE: A CRITICAL ASSESSMENT
Libertarianism has proved to be a force in almost every field of contemporary social debate. The doyens of social science can no longer dismiss the arguments produced by the leading scholars—dead and alive—of this intellectual tradition. Much of what is being discussed in this volume, being a specific libertarian contribution to the problem of “security,” is part of a broader dispute on crime, punishment, and the State that belongs also to orthodox (i.e., statist) social science.
However, certain tenets of libertarianism—which, after all, is also a moral doctrine—render the handling of such issues very different from what is common in mainstream social analysis. While the latter does not question the idea that the State must be the sole supplier of law and order, libertarians take quite the opposite road, as they are ready to explore any alternative to coercion and monopoly in the production of security.
Central to the libertarian framework, in fact, are the concepts of the “State” and the “free market” as two opposite poles of human experience. Rothbard nicely states this position in Power and Market: “On the market … there can be no such thing as exploitation. But … a conflict of interest [arises] … whenever the State or any other agency intervenes.… On the market all is harmony.”1
The market is the subject of thousands of publications of libertarian inclination—with Austrian economics as one of the most important traditions—and our understanding of free markets, competition, and their benefits to society and individuals has been increasing enormously, but when it comes to the other pole of the dichotomy, the State, libertarians seem to be less sophisticated.
It is our contention that one of the greatest mistakes of many libertarians has been to follow a simplistic scheme of power: to call “State” every form of political aggregation and to believe in the perennial nature of this human artifact. Commenting on a much-welcomed book dealing specifically with the modernity of the State, David Gordon, the semiofficial reviewer of the libertarian community, notices: “By ‘state,’ our author means something more limited than do contemporary libertarians (and Max Weber).”2 This general lack of perception of the State as a historically shaped institution is understandable in light of the fact that contemporary libertarianism has developed mostly in America, a country plagued only recently and often inadvertently by statehood.
Some views on the origins of the State, however, are bound to backfire against the general theory of libertarianism. If the State is nothing else than “political power,” if it has accompanied human communities since the beginning of history, how are we going to see the end of such a massive coercive apparatus? In other words, if the State is inherently part of the human experience, why should a defender of freedom bother to become libertarian? Ultimately, if the State is as old as mankind, then libertarianism is just another form of utopia, though of no criminal nature.
One of the central axioms of libertarianism is the idea that the same morality applies to every person, whether acting on behalf of a public apparatus or in his individual capacity. Society and individuals must be judged as a whole: if something is morally unacceptable, it should be so for everybody. In Human Action, Mises affirms that the most weighty revolt against reason can be found in the idea that “there is no such thing as a universally valid logic.”3 Mises calls this polylogism: “Marxian polylogism asserts that the logical structure of mind is different with the members of various social classes. Racial polylogism differs from Marxian polylogism only insofar as it ascribes to each race a peculiar logical structure of mind.”4 The rise of the State brought about a different kind of polylogism, whose paramount importance for the general theory escapes no one: the division between the mass of subjects and the elite of political rulers.
We can distinguish between three different concepts: politics, coercion, and State. Not all politics are coercive, and not all coercive political orders can be called “States.” Libertarian theory is destructive, not of politics qua politics, but of certain peculiar orders based on a monopoly of violence (or of “legitimate” force). The most relevant example of the latter is the political order that won preeminence in Europe during modern times, the one that we call the State. In fact, the moral separation between the rulers and the subjects is a by-product of the rise of modern politics, that is, the State. During modern times, the State has emerged because of many diverse and unique historical circumstances, but one single “moral” doctrine has been crucial for its materialization. It is the belief according to which the ruling class is legitimized to act by any means necessary, while the people at large are bound by a set of laws created by the rulers (as well as commonsense morality).
The State is indeed a very “peculiar institution,” having a uniqueness that must be appreciated from the historical point of view. It was in fact only during the rise of the State that the previously unheard-of idea of “raison d’etat” gained ground, both intellectually and practically. Although quite correctly the name of Niccolò Machiavelli is to be associated with such a break between politics and morality, the Florentine was only the first of several political theorists who worked to furnish the ruling class its morally invulnerable position. In particular, Giovanni Botero, in his 1589 book La Ragion di Stato, was the first to openly argue that, for the safety of the State, men may legitimately perform actions that would be considered crimes were they committed with other purposes or by people not empowered by such a noble institution.
During previous times, however brutal they may have been, the viciousness of a double morality—one limited to those acting in the name of the State and the other suitable for the general public—simply did not exist. For libertarians not to grasp this historical fact would be a mistake of great import. In fact, since the birthmark of modern politics (political modernity being synonymous with the State) is the double standard libertarians so explicitly fight against, they would be missing a chance to give a sound historical foundation to their own theory.
What gives libertarianism a great intellectual appeal, as well as a watertight foundation, is the very historicity of the State. It is useful to borrow the words of a historian, certainly not a libertarian, to grasp immediately the consequences of a clear, precise, and scientific perception of the State:
The State is not an eternal and unchanging element in human affairs. For most of its history, humanity got by (whether more happily or not) without a State. For all its universality in our times, the State is a contingent (and comparatively recent) historical development. Its predominance may also prove to be quite transitory. Once we have recognized that there were societies before the State, we may also want to consider the possibility that there could be societies after the State.5
The fortune of Marxism as an intellectual force relied heavily on the fact that the socialists rarely advanced a model society. Karl Marx devoted a mere fraction of his intellectual productivity to fantasizing about the “socialist ideal society,” and his followers focused rather on a never-ending critique of “capitalism.”6 In contrast, libertarians have concentrated much of their efforts toward envisioning a future society based on nonaggression, voluntary relations, property rights, and free-market exchanges, sometimes at the expense of reflections on strategy (how to get from here to there). As for the libertarian critique of existing restrictions on the free markets, we may rely on Austrian economics, or other traditions, depending on one’s tastes. But when it comes to the evaluation of the State, one has to rely on the past. It is, in fact, in the medieval political and juridical order that existed in Europe prior to the rise of the State that one could find suggestions for a libertarian future.
Before we briefly explain what we consider to be the sound interpretation of the origins of the State—the key to a realistic treatment of the problem of security—let us briefly review the all-too-fashionable schools that still command respect from academic quarters. In particular, two related approaches are unsatisfactory: the sociological and the anthropological views of the genesis of the State.
One should be very suspicious of anthropological studies of the birth of the State for various reasons. First, because although non-European cultures deserve all the scholarly attention they may get (at least as an antidote for many centuries of racism) anthropologists have a tendency to fall in love with the cultures they study and to make too much of them. We owe respect to every human being and his or her heritage. However, statements like the following—typical of a certain stream of cultural relativism—are quite unwarranted: “When one is reading descriptions of those who lived in ancient Buganda or ancient Polynesia, images of the Italian Renaissance or Athens in the fifth century B.C. come to mind.”7
But this could be considered a venial sin in light of what the anthropological school has to say about the hard issues. To Eli Sagan, “the state may be defined as that form of society in which nonkinship forms of social cohesion are as important as kinship forms.”8 In fact, “state building was the process of kingship triumphing over kinship.”9 While it seems difficult to grasp the different stages of institutional development from this vantage point, the complete absence of historical perception underlining such a postulate must be noted. It may be true that tribal and blood relations must be overcome in order to approach an institutionalized system of command. This simple truth, however, is unable to account for the complexity of modern juridical organizations.
Moreover, the timeless nature of the anthropological analysis could be helpful to comprehend some perennial features of human societies, but it proves futile when applied to transient, peculiarly European institutional realities such as the State. One of the pioneers of this tradition, James George Frazer, asserted:
The continuity of human development has been such that most, if not all, of the great institutions which still form the framework of civilized Society have their roots in savagery, and have been handed down to us in these later days through countless generations, assuming new outward forms in the process of transmission, but remaining in their inmost core substantially unchanged.10
Although rarely given full credit, the whole construction of the anthropological school follows the same line of reasoning drawn by Ludwig Gumplowicz and Max Weber a century ago.
Gumplowicz was one of the leading exponents of the sociological tradition. He gave the following account of the origins of the State:
The state is a social phenomenon consisting of social elements behaving according to social laws. The first step is the subjection of one social group by another and the establishment of sovereignty; and the sovereign body is always the less numerous. But numerical inferiority is supplemented by mental superiority and greater military discipline.11
One element of this definition, the anchorage to European realism (the idea that the disorganized mass will always be ruled by an organized elite), is still persuasive, but his portrayal of the human condition appears simplistic, ignoring largely the complexity of different institutional orders and political cultures. It seems to entail the existence of a process of subjugation going on since the beginnings of time. Let us notice, however, that Gumplowicz employs the word “sovereignty,” invented by Jean Bodin in 1576. The sociologists spoke of organizations, power politics, domination, and so on, but they actually had in mind the State, i.e., political modernity. Instead of projecting a semibarbaric and timeless condition on Western institutions (as the anthropologists do), the sociologists cast the State image on the hordes and tribes of all continents.
This is also the most important ambiguity of Max Weber. On one side, he is one of the authors who characterizes the State model in a totally unhistorical fashion; at the same time, however, he appears to be very much aware of the specifically modern character of State institutions. For Weber,
the basic functions of the “state” are: the enactment of law (legislative function); the protection of personal safety and public order (police); the protection of vested rights (administration of justice); the cultivation of hygienic, educational, social-welfare, and other cultural interests (the various branches of administration); and, last but not least, the organized armed protection against outside attack (military administration). These basic functions are either totally lacking under primitive conditions, or they lack any form of rational order. They are performed, instead, by amorphous ad hoc groups, or they are distributed among a variety of groups such as the household, the kinship group, the neighborhood association, the rural commune, and completely voluntary associations formed for some specific purpose.12
Weber tries to characterize the universal features of the State, but it becomes palpable that only some specific institutions can be traced back to such a political order, and that the family, the parental group, the union of the neighbors, the rural commune, and the like are not among such institutions.
It is true that Weber tries to connect State and coercion (we hold that every State involves coercion, but not every kind of coercion makes a State). However, Weber seems to be well aware of the genuinely modern nature of the State when he tries to depict its emergence:
The spread of pacification and the expansion of the market thus constitute a development which is accompanied, along parallel lines, by (1) that monopolization of legitimate violence by the political organization which finds its culmination in the modern concept of the state as the ultimate source of every kind of legitimacy of the use of physical force; and (2) that rationalization of the rules of its application which has come to culminate in the concept of the legitimate legal order.13
The book on the State that has probably had the most lasting impact on libertarians is Oppenheimer’s. Albert J. Nock and Murray Rothbard, arguably the most important libertarian thinkers of the last century, have taken directly from the German sociologist the famous dichotomy between economic means and political means.
Libertarians are usually talented—at least Rothbard was—in making use of an array of different thinkers of Marxist, socialist, collectivist persuasions for their own purposes. However, Oppenheimer is in such a chaotic web of intellectual traditions that, perhaps, he is of no use at all. He considered himself a “social liberal” and put himself in very good company:
Only a small fraction of social liberals, or of liberal socialists, believe in the evolution of a society without class dominion and class exploitation which shall guarantee to the individual, besides political, also economic liberty of movement, within of course the limitations of the economic means. That was the credo of the old social liberalism, of pre-Manchester days, enunciated by Quesnay and especially by Adam Smith, and again taken up in modern times by Henry George and Theodore Hertzka [sic].14
Nonetheless, the author of Der Staat must be judged for what he has to say on his topic:
The State, completely in its genesis, essentially and almost completely during the first stages of its existence, is a social institution, forced by a victorious group of men on a defeated group, with the sole purpose of regulating the dominion of the victorious group over the vanquished, and securing itself against revolt from within and attacks from abroad. Teleologically, this dominion had no other purpose than the economic exploitation of the vanquished by the victors.15
The claim is that the State came out of conquest and force. As appealing as this may sound for libertarians, this vision is off the mark. In another passage, Oppenheimer hints that the dawn of the State must be recognized in the division of labor— the simple fact that some people were endowed by nature with a warrior character and physical ability.
The peasants become accustomed, when danger threatens, to call on the herdsmen, whom they no longer regard as robbers and murders, but as protectors and saviors.… The herdsman has learned to “capitalize.”16
In other words, it was not only direct conquest but also failed assaults that gave birth to the State. The best defenders discovered that they could do nothing and be nurtured by the population until the next wave of assailants came by. The warriors were thus the soul of the rising State. Needless to say, to defend and protect other people is a perfectly legitimate function, and if some people are very good at it, they deserve all the idleness they may get. The birth of the State, in Oppenheimer’s enthusiastic conjecture, is contradictory: plunder (definitely illegitimate) on the one side and the division of labor (clearly legitimate) on the other.
Nation and State were born together and are indistinct in the German scholar’s imagination:
The moment when first the conqueror spared his victim in order permanently to exploit him in productive work, was of incomparable historical importance. It gave birth to nation and state, to right and the higher economics, with all the developments and ramifications which have grown and which will hereafter grow out of them.17
Oppenheimer is one of the leading sociologists to have paved the way for a fusionist socio-anthropological model.18 Countless quotations from Friedrich Ratzel add an exotic flavor to the book. We are thus brought into a world where social organizations of the Ovambo, Wahuma, and other primitive cultures should teach us something about the State and its specific features.
THE RISE OF THE SOVEREIGN STATE: THE BORDERS FOR LAW AND ORDER
The first myth one has to debunk in order to assess the relationship between the provision of law and order and the rise of the (modern) State is that this political institution is merely a natural and organic outgrowth of political power, as old as the history of mankind or of organized society. Actually, it would be wise to dispose of the qualifier “modern”: only the State is modern.19 Whether we see its cradle in the Italian system of States after the Peace of Lodi (1454), or in western Europe (Spain, France, and England) in the 1600s, one thing is clear: the State “gradually emerged in the course of the fifteenth and sixteenth centuries and found its first mature form in the seventeenth.”20
After a summary of the chief traits of the State—organization, sovereignty, coercive control of the population, centralization, etc.—Gianfranco Poggi affirms: “strictly speaking the adjective ‘modern’ is pleonastic. For the set of features listed above is not found in any large-scale political entities rather than those which began to develop in the early-modern phase of European history.”21
Oakeshott seemed to be conscious of this peculiarity of the State when he affirmed that
[t]he somewhat novel association of human beings which came to be called the states of modern Europe emerged slowly, prefigured in earlier European history, but not without some dramatic passages in their emergence … for the most part, the territories of modern states were newly delineated. They were the outcome of movements of consolidation in which local independencies were destroyed and movements of disintegration in which states emerged from the break-up of medieval realms and empires.22
The second myth we must dispose of is the belief, shared by most historians, that the rise of the State contributed to the general cause of human liberty. In other words, that it has been a “progressive factor” in the history of mankind. Instead, it must be seen as a revolution that upset the old order, granting privileges, immunities, and rents to some and obliterating them for the rest of society. As Charles Tilly put it,
the European State-makers engaged in the work of combining, consolidating, neutralizing, manipulating a tough, complicated, and well-set web of political relations.… They had to tear or dissolve large parts of the web, and to face furious resistance as they did so.23
The history of liberty is rather to be found in the attempts to restrain the powers of the State, from the fight to preserve “medieval freedoms” and community privileges, to the struggle against the concentrations of power in a given center (whether a king or a parliament).
Liberty, as well as law and order, was secured, and in some cases much better, at different stages of European history, when a monopoly of violence over a given territory was simply out of reach. Although we are primarily concerned here with the State provision of law and order, one must not forget that the self-governing communities of the Middle Ages, in northern Italy and central Europe, offer significant examples of a completely different way of guaranteeing peace and security.
In the golden age of communal liberty (which lasted in most parts of Europe until the sixteenth century, but in certain areas, like Switzerland, much longer), merchants and citizens formed their own statutes regulating passage, immigration, and exchange: in short everything related to peaceful and noncoercive self-government. During these times, there was no clear-cut definition of power over a given territory, as there were no borders in the modern sense. An institutionalized power always had an antagonistic counterpower claiming allegiance from the same subjects. The result was that every medieval command was actually nothing more than a claim, subject to be opposed and constrained by an institutional network of competing counterclaims.
In Freedom and the Law, Bruno Leoni stated that
an early medieval version of the principle, “no taxation without representation,” was intended as “no taxation without the consent of the individual taxed,” and we are told that in 1221, the Bishop of Winchester, “summoned to consent to a scutage tax, refused to pay, after the council had made the grant, on the ground that he dissented, and the Exchequer upheld his plea.” We know also from the German scholar, Gierke, that in the more or less “representative” assemblies held among German tribes according to Germanic law, “unanimity was requisite” although a minority could be compelled to give way.24
It was not only what has been simplistically called “medieval pluralism” that guaranteed the impossibility of any state-like organizations, but rather the forms of the juridical relations between individuals and rulers. In medieval society the lives and properties were not readily “accessible” to the king and nobles. As Charles H. McIlwain pointed out:
This property which a subject had of legal right in the integrity of his personal status, and the enjoyment of his lands and goods, was normally beyond the reach and control of the King.… At the opening of the fourteenth century John of Paris declared that neither Pope nor King could take a subject’s goods without his consent.25
It seems quite difficult to conceive of a State without the attributes of a State—that is, the possibility of disposing at free will over the lives and properties of its subordinates. Clearly, what was beyond the reach of king and nobles during the Middle Ages is now available to democratic majorities, and the whole “story” of the State is how we got from there to here.
Prior to the birth of the State, the predatory effects of political power on individuals were minimal (compared to other areas of the globe or to what happened later on the same continent), and in any case the citizens always retained their exit right. This right kept a check on political power and is singled out by many authors as one of the primary causes for the development of a “limited territorial predator” in the West.
Meanwhile, there was no single source of law and order: the production of security was never considered a distinct institutional affair, but rather a concern of the whole community. For several centuries, customs, traditions, and ancient Roman laws worked together in assuring a juridical order. Law in the Middle Ages was a way of resolving conflicts, but it was kept a more or less private business. There was no organic conception of the “social body,” and thus crime remained a private matter to be taken care of with well-defined rules. In other words, crime was never considered a social problem, a wound inflicted on the collective body. This, in turn, implied that the victims were the center of any lawsuit; redress was done from the point of view of the victims, never of a supposedly wounded collectivity. Even when feuds broke out, which was quite often, the families involved were asked to reestablish the public peace, but very seldom were the perpetrators of crimes punished once peace was restored.
In a peculiar sense, words, as crystallized ideas, have consequences: the medieval period was definitely over when, at the end of a long gestation, the word “State” was used in the modern sense by Niccolò Machiavelli. The Florentine asserted right at the beginning of his most famous work, The Prince: “All the states, all the dominions under whose authority men have lived in the past and live now have been and are either republics or principalities.”26 And the emergence, in political theory, of the cluster of ideas associated with the State is largely a Machiavellian legacy. As George Sabine put it:
Machiavelli more than any other political thinker created the meaning that has been attached to the state in modern political usage. Even the word itself, as the name of a sovereign political body, appears to have been made current in the modern languages largely by his writings.27
However, in Machiavelli we find little concern for the public peace, tranquility and security of the citizens. When the word security (sicurtà) is used, it is always in reference to the Prince’s possessions: “Among kingdoms which are well organized and governed, in our own time, is that of France: it possesses countless valuable institutions, on which the king’s freedom of action and security depend.”28 For our purposes, Machiavelli is important, because, although a “republican” at heart, he saw the king and the kingdom as the protagonists of a new era.
From the sixteenth century, it was left to monarchical absolutism to develop the notion of the organization of power through an artificial person, the State. The novelty of such a political creature was that the entire political reality was reshaped through offices, entities, and laws. The new body politic transcended individuals as well as sovereign. It did not represent anybody; it simply existed and was nurtured by myths produced by historians as well as politicians, first and foremost the myth of having always existed.29 As Luhmann has noted: “Following the proclamation of the sovereign State, especially in France during the second half of the sixteenth century, historians went to work. The present needs a past adaptable to it.”30
In this context of political modernity, the problem of law and order arose as a specific State problem. The first and foremost duty of the State toward its subjects became the provision of security. Or, to be less naïve,
the State has arrogated to itself a compulsory monopoly over police and military services, the provision of law, judicial decision-making, the mint and the power to create money, unused land (“the public domain”), streets and highways, rivers and coastal waters, and the means of delivering mail.… But, above all, the crucial monopoly is the State’s control of the use of violence: of the police and armed services, and of the courts—the locus of ultimate decision-making power in disputes over crimes and contracts.31
MODERN POLITICAL THINKERS: SOVEREIGNTY AS SECURITY
The rise of the centralized State apparatus that practically claimed a monopoly of the use of force within a given territory went hand in hand with the intellectual pursuit of describing such a novelty.
The plenitudo potestatis became the goal towards which the kings moved consciously. To reach it, a long road stretched before them, for it was necessary to destroy all authorities other than their own. And that pre-supposed the complete subversion of the existing social order. This slow revolution established what we call sovereignty.32
The French thinker Jean Bodin in the late sixteenth century attempted to validate the power of the king against any other claim, and thus produced a work that is considered the starting point for any history of “sovereignty.” The ruler was offered the gift of a totally new concept: that of the absolute authority over his kingdom, subject only to the divinely ordained natural laws. But such an innovation had to be dressed in old clothes.
Sovereignty is the absolute and perpetual power of a commonwealth, which the Latins called maiestas; the Greeks akra exousia, kurion arche, and kurion politeuma; and the Italians segnioria … while the Hebrews call it tomech shévet—that is, the highest power of command.33
Bodin’s intellectual efforts, coupled with the institutional developments that were taking place in Europe at the time, brought about a break with the medieval political tradition. In relation to well-known historical events (Bodin was writing in a period of intense religious conflict in France, at the height of the religious wars that threatened to destroy the country) and addressing social, cultural, and political needs of his time, the French thinker “discovered” the notion of sovereignty and associated it with an institutionalized reality. Sovereign authority became the absolute power of the State, neither temporary, nor delegated, nor answerable to any particular power on earth. The only limitations to the power of sovereignty were the laws of God and Nature. There is no place for anything like a concurrence of the subjects in determining the course of the sovereign, because “sovereignty is not limited … the crucial point of sovereign majesty … is that it can give laws to its subjects generally without their consent.”34
But what is it there to perform? The first duty of the sovereign power is to find solutions for conflicts naturally arising in society. The task is to show that the forces that generated the conflict are unable to provide a solution to it. Once this is accepted, and because a permanent state of war is intolerable, it follows that a summa potestas (a locus where decisions must be taken) becomes a self-evident necessity.
The sovereign need not be an extraordinarily gifted man. Here we see the modernity of Bodin vis-à-vis Machiavelli: the only important thing is that someone has the power to decide for everybody without restrictions. The function attributed to the sovereign power, not the quality of the prince, will render his actions just and fortunate. It is the birth, in political thought, of the institutional reality.35
Some contemporary political philosopher’s far-reaching vision notwithstanding,36 sovereignty is very much a State concept, as in the days of Charles L’Oyseau, who asserted:
Sovereignty is entirely inseparable from the state.… For sovereignty is the form which causes the state to exist; indeed, the state and sovereignty in the concrete are synonymous. Sovereignty is the summit of authority, by means of which the state is created and maintained.37
It was up to Thomas Hobbes to reinterpret the same category discovered by Bodin, in times of social and political strife for England that parallel those in which the French thinker wrote. The framework created by Hobbes has had a much more lasting impact on social philosophy. As Hoppe put it:
the myth of collective security can also be called the Hobbesian myth. Thomas Hobbes, and countless political philosophers and economists after him, argued that in the state of nature, men would constantly be at each other’s throats. Homo homini lupus est. Put in modern jargon, in the state of nature a permanent underproduction of security would prevail.38
Hobbes accentuated the institutional characteristics of the sovereign power as well as the necessity of preserving the public peace. In fact, the only times when the citizens seem to have certain rights vis-à-vis the sovereign is when the latter does not perform his duty to provide law and order. A contemporary historian asserted:
Hobbes deserves the credit for inventing the “state” … as an abstract entity separate both from the sovereign (who is said to “carry” it) and the ruled, who, by means of a contract among themselves, transferred their rights to him.… Hobbes’s sovereign was much more powerful than … any Western ruler since late antiquity.39
The supreme power (be it vested in an omnipotent assembly or a king) has a right to the obedience of its subjects.
And because the End of this Institution is the Peace and Defence of them all [the citizens], and whosoever has right to the End has right to the Means, it belongeth of Right, to whatsoever Man, or Assembly that hath the Soveraignty, to be Judge both of the meanes of Peace and Defence, and also of the hindrances and disturbances of the same; and to do whatsoever he shall think necessary to be done, both beforehand, for the preserving of Peace and Security, by prevention of Discord at home, and Hostility from abroad; and when Peace and Security are lost, for the recovery of the same.40
The great antagonist of Hobbes, in seventeenth century England, was John Locke. As far as we are concerned, only one difference must be kept in mind: Hobbes defends government as a peacemaker, Locke as a rights-protector.41 Locke’s concept of the State as a man-made artifact for the protection of life, liberty, and estate—in a word, property—puts him in a different class of thinkers. The State is still the provider of law, order, and social peace; however, it is limited by a major constraint, namely, the protection of the individual’s natural and inalienable rights. This is the peculiar Lockean notion of law and order: property (the sum of the individual rights in the state of nature minus the individual right of self-defense which is forfeited upon entering into civil society) must be guaranteed by the State monopoly of force. Obedience, however, is not granted unconditionally:
The reason why men enter into society is the preservation of their property; and the end while they choose and authorise a legislative is that there may be laws made, and rules set, as guards and fences to the properties of all the society, to limit the power and moderate the dominion of every part and member of the society. For since it can never be supposed to be the will of the society that the legislative should have a power to destroy that which every one designs to secure by entering into society, and for which the people submitted themselves to legislators of their own making: whenever the legislators endeavour to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge which God hath provided for all men against force and violence.42
The intellectual pursuit of an almost nonsovereign State, or at least of a limited State, bound by consent and natural rights, which is what the work of Locke is about, gave birth to the traditions of classical liberalism and constitutionalism. But the quest for full sovereignty of the body politic did not end with Locke’s Second Treatise, which actually had little impact when it was first published (1690) and went almost unnoticed for several decades.
A very different kind of thought, soon to gain preeminence in continental Europe, was developed in the 1700s by a Geneva-born thinker. For Jean-Jacques Rousseau, sovereignty resides in the general will and, accordingly, individuals must be forced to be free. In the Social Contract (1762), he wrote:
In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; for this is the condition which, by giving each citizen to his country, secures him against all personal dependence. In this lies the key to the working of the political machine; this alone legitimises civil undertakings, which, without it, would be absurd, tyrannical, and liable to the most frightful abuses.43
In spite of the war on individuality declared both by Rousseau and his Jacobin followers, classical liberalism did not completely die out on the continent. Frédéric Bastiat, in the middle of the nineteenth century, was one of the few political theorists to revive the natural-rights tradition. In a famous pamphlet he stated that:
Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.…
What, then, is law? It is the collective organization of the individual right to lawful defense.
Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two.44
Just a year earlier, another French economist, Gustave de Molinari, published an article in the Journal des Économistes,45 challenging for the first time the State in its most vital monopoly function: the production of security.
Molinari begins by quoting Dunoyer, a classical liberal who believed that a State monopoly on law and order was a necessity: “One economist who has done as much as anyone to extend the application of the principle of liberty, M. Charles Dunoyer, thinks ‘that the functions of government will never be able to fall into the domain of private activity.’”46 And then he poses the crucial question:
But why should there be an exception relative to security? What special reason is there that the production of security cannot be relegated to free competition? Why should it be subjected to a different principle and organized according to a different system?47
Molinari’s argument for security as a commodity is simple and very appealing:
It offends reason to believe that a well established natural law can admit of exceptions. A natural law must hold everywhere and always, or be invalid.… I consider economic laws comparable to natural laws.… The production of security should not be removed from the jurisdiction of free competition; and if it is removed, society as a whole suffers a lot. Either this is logical and true, or else the principles on which economic science is based are invalid.48
His analysis goes on to show that there are two logical non-competitive solutions: monopoly (the old monarchy) and communism (which he believed was on the rise and gaining ground everywhere). If communism will prove itself to be a good provider of protection, then it should work also in any other field of economics. “Complete communism or complete freedom: that is the alternative!”49 What if someone accepts neither monopoly nor communism? For these unlucky few there is only violence.
The monopolists and the communists … understand this necessity. If anyone, says M. de Maistre, attempts to detract from the authority of God’s chosen ones, let him be turned over to the secular power, let the hangman perform his office. If anyone does not recognize the authority of those chosen by the people, say the theoreticians of the school of Rousseau, if he resists any decision whatsoever of the majority, let him be punished as an enemy of the sovereign people, let the guillotine perform justice.50
Molinari ends his essay with a vision of a free society that even a century and a half later still inspires libertarians all around the world.
Under a regime of liberty, the natural organization of the security industry would not be different from that of other industries. In small districts a single entrepreneur could suffice. This entrepreneur might leave his business to his son, or sell it to another entrepreneur. In larger districts, one company by itself would bring together enough resources adequately to carry on this important and different business. If it were well managed, this company could easily last, and security would last with it.… On the one hand this would be a monarchy, and on the other hand it would be a republic; but it would be a monarchy without monopoly and a republic without communism. On either hand, this authority would be accepted and respected in the name of utility, and would not be an authority imposed by terror.51
THE LESSONS OF EUROPEAN REALISM
The constitutionalist claim to justify the State’s monopoly of violence has been challenged directly by the radical libertarian tradition (Molinari) and by individualist anarchists (such as Lysander Spooner). However, an important role in bringing the modern State into perspective has also been played by European political realism and, in particular, by Carl Schmitt and the Italian elitist scholars (Gaetano Mosca and Vilfredo Pareto).
Schmitt’s importance rests very much on his intuition that in every State there is first a political dimension and then a decision, which cannot be obscured by the so-called “impersonality” of law and the “super-individuality” of orders.52 Beyond the apparent abstraction of the State (as described by Hans Kelsen and other positivists),53 Schmitt uncovered choices, interests, and, in short, people that impose their will on others.
The constitutional thought of classical and contemporary liberalism has constantly tried to neutralize politics, but it has failed. In Schmitt’s opinion, the real sovereign is the political group that has the final decision about the critical situation, in the state of emergency.54 The locus of sovereignty thus becomes the political entity (which in our time is the State), and the decision on the state of emergency is the ultimate test of sovereignty. Legal positivism tried hard to refute the importance of this notion, but critical decision making is paramount in the development of human relations.
Therefore, the “liberal” neutralization of politics sought by classical constitutionalism is simply impossible. When the State—every State—is recognized as a structure of decisions and an instrument of domination wielded by some rulers, political modernity displays itself with no clothes and one can understand the illegitimacy, as well the irrationality, of the monopoly of protection. There is nothing “neutral” or “innocent” in the power of a group of men that Italian elitists called the ruling class.
Hobbes was wrong (as a philosopher) when he asserted that law comes from authority. However, we can agree with political scientists using Hobbesian theory that State decisions are the result of conflicts of interests and opposing views. In statist societies, where the law is controlled by a monopolistic institution, it is force that dictates law.
This is especially true in democratic countries, where social life is marked by the competition for the control of the political “center,” i.e., the power to distribute resources, favors, and privileges. Schmitt’s critique of the hypocrisy of liberal democracy is confirmed by the Italian elitists. The latter were convinced that in every political system there is a small group of men (an organized elite) dominating the large disorganized mass. As Pareto noted,
the corruption of the parliamentary system meant that the interests of the majority were seconded to the interests and passions of a small and highly organized group. These were ready to use any means to extend their influence and dominate the country.55
For this reason, democracy exists only as a political ideology devoted to protecting and legitimating the power of a minority capable of taking advantage of its higher organization.56
Bruno Leoni adopted political realism (and the lessons of the Italian elitists) in his critique of majoritarian democracy. In his opinion, eliminating all group decisions taken by aggressive coalitions
would mean terminating once and for all the sort of legal warfare that sets group against group in contemporary society because of the perpetual attempt of their respective members to constrain, to their own benefit, other members of the community to accept misproductive actions and treatment.57
In juridical and political philosophy, the hypothesis of a neutral State is often supported by the suggestion that this political institution is eternal. However, European political realism refused this arbitrary identification between State and politics. Social orientations generally support contemporary democracy, defining all forms of juridical organization as part of the all-encompassing category “State.” A major contribution of Schmitt, as we noted, is his placing the State in historical context, i.e., modernity. For all these reasons, “European realism” has contributed to uncovering the fabrications of constitutionalism, the conceptual frauds of democracy and the fallacious idea that State is an institutional reality as old as mankind. To be sure, Schmitt was the most theoretically sound expounder of the crisis of the State, but he did not identify a solution.
Another protagonist of “European realism,” the Lombard scholar Gianfranco Miglio, tried to go beyond Schmitt. In some of his works, he has explained the crisis of the Soviet state model. This was the downfall of the modern political system that showed the greatest confidence in the rationality of orders imposed with violence. Given that the Soviet Union has broken up, Miglio asserted, the other State systems (especially the ones governed by democratic parliaments) would suffer growing criticism and dissent, and might also collapse in the near future.
The State is declining also because of its internal contradictions. In its attempt to appear as a nonaggressive provider of individual rights, the State has created a deceitful contractualism, which is continually sapping its existence. From a theoretical point of view, as Miglio observed,
the modern State is a construction entirely based on the contract. It has extended into the non-political area of “private life.” Therefore, the State is historically a complex of services and provisions, a gigantic entity of contractual relationships.58
In fact, in spite of its ideological self-representation, the democratic State is an illustration of violence and monopoly unparalleled in human history. It exists because it is the only institution authorized to use force in a given territory. However, the notion of political obligation has lost vigor and consistency, while economy and communications are growing together with the rationality of free exchange, free markets, and free discussions.
IN SEARCH OF LIBERTARIAN REALISM
The force of Miglio’s arguments derives from the fact that his speculative theory tries to bring together the pars destruens of European realism with the pars construens of American libertarianism (although somewhat unconsciously). For Miglio, however, political communities are primary entities, while most contemporary libertarians, like Rothbard, accept Molinari’s theory about the privatization of security and imagine a complete liberalization in the realm of law and order. It is not the usual occupations of contemporary States that are the focus of libertarian criticism.
The State indeed performs many important and necessary functions: from provision of law to the supply of police and fire fighters, to building and maintaining the streets, to delivery of the mail. But this in no way demonstrates that only the State can perform such functions, or, indeed, that it performs them even passably well.59
Rothbard’s demystification of the State is appealing. In fact, he underlined a methodological integration of State and civil society and pursued a reductio ad unum that eliminates every artificial frontier between men operating within the private and the public sectors. In his noted statement of the tenets of the libertarian creed, he asserted:
[T]he libertarian refuses to give the State the moral sanction to commit actions that almost everyone agrees would be immoral, illegal, and criminal if committed by any person or group in society. The libertarian, in short, insists on applying the general moral law to everyone, and makes no special exemptions for any person or group.60
For libertarians, it is impossible to accept criminal behavior if carried out by the lawmakers. It must be condemned just as when simple citizens act in the same manner. Rothbard remarks that
All other persons and groups in society (except for acknowledged and sporadic criminals such as thieves and bank robbers) obtain their income voluntarily: either by selling goods and services to the consuming public, or by voluntary gift (e.g., membership in a club or association, bequest, or inheritance). Only the State obtains its revenue by coercion, by threatening dire penalties should the income not be forthcoming.61
In libertarian theory, Albert Jay Nock analyzed the consequences of this situation in the 1930s: “Taking the State wherever found, striking into its history at any point, one sees no way to differentiate the activities of its founders, administrators and beneficiaries from those of a professional-criminal class.”62 When the State exercises a monopoly of violence and punishes criminal behavior committed by ordinary citizens, it must legitimize itself and its own criminal behavior. Hence, Schmitt was right when he said that in State-ridden societies there is always a decisional dimension (political and arbitrary) that nobody can ignore and no institution can eliminate.63
Rothbard also accepted the main tenets of elitism. His opinion is that “the normal and continuing condition of the State is oligarchic rule: rule by a coercive elite which has managed to gain control of the State machinery.” His thesis is that an important argument
for the oligarchic rule of the State is its parasitic nature—the fact that it lives coercively off the production of the citizenry. To be successful to its practitioners, the fruits of parasitic exploitation must be confined to a relative minority, otherwise a meaningless plunder of all by all would result in no gains for anyone.64
So, Rothbard gave us a straightforward explanation of the fact that a minority controls the State. And he often used Oppenheimer’s distinction (as we noted, probably the only utilizable reflection to be found in The State) between economic means and political means:
There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one’s own labor and the forcible appropriation of the labor of others.… I propose in the following discussion to call one’s own labor and the equivalent exchange of one’s own labor for the labor of others, the “economic means” for the satisfaction of needs, while the unrequited appropriation of the labor of others will be called the “political means.”65
If the State exists to exploit the great mass of the population, then a small minority must control the loot. It is here that libertarianism underlines the fragility of modern politics, always unable to justify the different conditions of the governing elite and the governed populace. It is obvious that this situation can only be appreciated by understanding the historical evolution of the State. It should be evident that this institution has been imposed to the disadvantage of all types of social and political autonomy that existed in previous times.
The factual character inherent in most libertarian analyses of the State should bring us to understand the important link between libertarianism and “European realism.” The realists, following Schmitt, consider sovereignty an abstract and impersonal concept having very little to do with authenticity. Thus, a stream of contemporary libertarian thought trying to reestablish the intellectual legitimacy of a sort of premodern past, which the concept and reality of State institutions tried to cancel, seems to us perfectly sound.
The key to the rise of the State can be found also in the “personal feuds” of medieval Germanic populations and the gradual abolition of this practice. Otto Brunner showed that the modern political-judicial “rationalization” implied the disarming of citizens, which was followed by the creation of an increasingly armed bureaucracy. The disarming of individuals and the abolition of their possibility to act in defense of their own rights paved the way to the creation of a monopoly of legislation, which in turn led to the submission of the entire society.66
But what was this ancient “feud”? It was above all an action to correct a wrong and therefore it was construed as a right. “The legitimacy of a feud depended above all on a just claim; for feud and enmity were at heart a struggle for right that aimed at retribution and reparation for a violation of one’s right.”67 Within medieval judicial order and indeed within their institutions, we see sovereigns and subjects declare war and conclude peace with each other “as if” each were subject to international law.
This link between the historicity of the State and political realism is very important. The analysis of Brunner about medieval feud is interesting also because it underscores the fact that law and society are the result of individual acts. Bruno Leoni’s writings about the “individual claim” illustrate the attempt to construe a realistic theory on the origins of law, based on “methodological individualism.”68 Medieval history offers a corroboration of this thesis. For Leoni, norms are the result of an exchange of individual claims, as the price is the result of a negotiation between buyer and seller. But also, the “feud solution” of medieval law can be analyzed as the conclusion of an interaction between the victim (who asked justice) and the offender (who must satisfy the claims of the victim and refund the damages).
In fact, the feud was not an arbitrary initiative. Its essential premise was the existence of a juridical foundation. Without a wrong being committed, there was no feud, but simply brute force, rebellion, and aggression. On the other hand, Brunner showed that “in a ‘legitimate’ feud the parties were required to ‘offer justice’ in some sort of preliminary negotiations.”69 In many cases, a feud was not simply a right but also a duty that took priority over “an individual’s obligation to a third party,”70 a creditor in particular.
The strides toward political modernity canceled the polycentric juridical order—without a monopoly of the law—where each vassal could lawfully initiate violence against his own lord in order to have his reasons recognized. As Otto Brunner noted, “prohibiting feuds was not a matter of a simple act of state; it entailed a fundamental change in the structure of law and politics.71 Of course, some historians are quite content with the category “feudalism,” which they adopt to explain pretty much everything in Europe from the fall of the Roman Empire to the Renaissance. We concur with Brunner that this is “a convenient cover for everything that one does not understand about the Middle Ages.”72
Some scholars have developed historical-institutional analysis to show the historicity of the State and the fact that it is only one (and certainly not the best) of many possible forms of social cooperation. There are a number of nonstate judicial organizations which, although marginal, are nevertheless important for our historical comprehension of the problem. (Typical societies without government that have been studied by libertarians include prehistoric civilization, ancient Iceland, primeval Ireland, and the American West.) In the future we need to look more into the medieval period and in particular at the later stages of its peak, between the eleventh and fifteenth centuries. It is from the medieval polycentric and self-regulated juridical order that many useful suggestions could come to widen our concept of liberty. Also, this world is the very core of Western civilization, while the realities celebrated by libertarians as “societies without a state” are somewhat peripheral.
Prior to the rise of the State, law and its interpreters had to recognize the existence of traditions, ethnic and family ties, and customs and culture. Law was mostly unwritten; it coincided with customs, and therefore it existed in a series of concrete cases that were outside the control of any political authority. It was to be found in the realms of jurisdiction and in the theoretical debates made by theologians and jurists. In the medieval period, the law was far from the all-encompassing instrument of modern societies.
There were two levels of law within medieval society: lex divina and lex humana. The latter was never intended as an act of free will but rather as a constant and imperfect attempt to impose divine rationality on nature and society. In the tensions that united and divided divine law and human law, an extraordinary intellectual work emerged, witnessed by the scholastic quaestiones. In St. Thomas, therefore, law was “quoddam dictamen practicae rationis”: an expression of practical reason.73 The greatest effort consisted of finding the strength and limits of the historical laws to be able to recognize laws necessary for society that were coherent with how God had ordained the world: “Tota communitas universi gubernatur ratione divina. Et ideo ipsa ratio gubernationis rerum in Deo sicut in principe universitatis existens, legis habet rationem.”74
COMMUNITIES BY CONSENT, MARKET FOR PROTECTION, AND THE NEW WORLD ORDER
One of the more characteristic features of the medieval period was the dimension of the traditional community. The “isolated individual” did not exist either socially or politically. The intentional characteristic of modern law—as an act of free will of those who are in power—and the centrality of the individual without relations, without a history or identity (completely abstract and simply a part of the Welfare State), are therefore closely linked. Contemporary libertarianism, after decades of oblivion of community, has also developed a tendency to rethink the individual, and to emphasize his strong ties within a community. Furthermore, the free market can be appreciated fully for its ability to connect individuals, thereby favoring communications and the development of a sense of community. The market, in fact, allows the emergence of relationships based on trust. This is essential for the quest for a society capable of minimizing the role of violence, like the one envisioned by libertarians. Protection agencies competing for customers could be the means to create consensus and trust among those who require security. This free market for protection, favored by libertarians, would be a prelude to a revitalization of interpersonal relationships.
On the other hand, economic analyses of State redistribution and studies on rent-seeking have shown that in its terminal stage, statist politics is a bitter struggle of everyone against everyone else in search of privileges. The triumph of the Hobbesian state of war occurs inside the body politic, within the borders of the sovereign power. At the beginning of the twenty-first century, Leviathan seems to have concluded its own parabola in a society dominated by conflicts without rules.
Contemporary politics faces a dilemma: Should the State protect individuals as individuals, or should it consider men as members of a group? If it opts for the former it must ignore identity and culture to the point of obliterating traditions in the name of the commonwealth of les valeurs républicaines (the republican values). On the other hand, if it considers individuals as part of a group, the State must accept the Balkanization of political society. This in turn implies that power becomes the fulcrum of a cartel of ethnic, religious, or cultural groups that look after their own interests to the detriment of everybody else’s rights. Indeed, within the State, each difference becomes an excuse for conflict and contrast.
Contrary to the critics of libertarianism, the commercialization of protection does not lead to the disorder of endemic conflict and war without solutions. Once again, the medieval experience shows that conflicts were less frequent, and their consequences less bloody. Furthermore, the inability to reach the lawmaking process, the seat of ultimate decision making (as the former was placed in no particular center and the latter simply did not exist), made the risks associated with waging war not worth taking.
The fragmentation of medieval politics had the merit of making all institutions weak and each army small. As Jean Baechler showed in his famous work on the origins of capitalism, it was medieval anarchy that helped create the dynamism of the first capitalism, both in the northern Italian and Flemish communes and in the markets of France.75 The weakness of politics was the strength of the merchants (and vice versa). We believe that a careful reexamination of the past can be a means of regaining efficient strategies for liberty. The failure of public monopolies in facing crime has already aided the spread of private security agencies to protect banks, companies, and residential areas. It is reasonable to imagine that the number and size of these activities will continue to grow in the future, as it has done extraordinarily over the past 22 years.76
There are no contradictions, furthermore, between the libertarian defense of secessionist processes (which lead to the development of smaller territorial monopolies) and the hypothesis of a market where protection is guaranteed by insurance companies and private police forces.77 Both strategies are closely related, because if secessionist processes are able to challenge State control of the territory, they also tend to create new and smaller protection monopolies. These, in turn, are less capable of subduing their own citizens, thanks to reduced exit costs and to the widening supply of governmental services.
However, the break-up of the Nation-State, which might be in our horizon, will not be able by itself to secure a libertarian future. One need only to observe what is happening on an international level to see that a new concept of law-enforcement is quickly gaining ground. It is within such a logic that we could envision the old Nation-States abandoned to their fate, and the new statist thinkers and builders bottling the same old wine in new flasks. Given the great difficulty within national borders, State law enforcement is trying to relegitimize itself within a new World Order which, thanks to the United Nations, NATO, and the like, would want to ensure maximum protection to all our “rights.” This project is very dangerous, because public opinion only vaguely understands the risks associated with the construction of World Government. “Humanitarian” interventionism, which is opening the path towards this goal, seems to meet with favor from the general public as well as from the pundits. In David Held’s view, for instance, globalization means that our actual citizenship cannot be defined by membership in a Nation-State, and democracy will not mean participation in purely national political processes. In this sense, according to Held, we need to think in terms of a “Cosmopolitan Democracy.”78
What is already happening in Europe is very significant. If present trends continue, the different European peoples, daily wrapped up in conflicts and difficulties caused by their own States, are about to be subject to the authority of a continental super-State, without even realizing it. This new government will try to “harmonize” fiscal policies—not to lower taxes, to be sure—and every other type of control of individual resources. At the end perhaps, Brussels will command every political decision and succeed in building a new “imperial” State, alongside the United States.
The expressions “World Government” and “Cosmopolitan Democracy” are only allusive, and they suggest a very general hypothesis. However, the success of a global power cannot be foretold, and we will never be sure whether this unified legal order, centralized and tyrannical, will take the place of the actual Nation-States. In his analysis of the use of violence which is proper of the State, Charles Tilly distinguishes four different activities of the public agents: war making (“eliminating or neutralizing their own rivals outside the territories in which they have clear and continuous priority as wielders of force”), state making (“eliminating or neutralizing their rivals inside those territories”), protection (“eliminating or neutralizing the enemies of their clients”), and extraction (“acquiring the means of carrying out the first three activities—war making, state making, and protection”).79 Nobody can predict whether the international organizations will ever be ready to satisfy all these conditions. They are merely increasing their authority and the capacity to control the resources of individuals, but they are still unable to discipline States. There is a certain irony in the fact that freedom seekers all around the globe must rely on the States’ unwillingness to comply with the far-reaching political dreams of euro and world unificationists. The contemporary resistance of the State to this historical nemesis of its own logic—the same one that in the past has paved the road to the rise of political modernity and is now digging its grave—seems to be the only realistic hope for individual liberties.
If human history continues the current ominous evolution toward a reinforcement of global political institutions, it is fairly likely that the World Order will be marked by a shared, concurrent power, between the old Nation-States and the new Center. The history of American federalism and the recent evolution of the European Union should provide some useful insights to understand this kind of dynamic. In any case, today’s cultural struggle seems clear-cut. On the one side, there is the emergence of theoretical hypotheses and business solutions, which redirect an ever increasing amount of power and free choice into the hands of individuals. The liberalization processes of industrial sectors and the globalization of markets have favored this trend. Secessionist pressure and the increasing demand for private protection are other signs of this tendency.
Against these overall positive tendencies, there is the zealous attempt of the monopolistic classes to preserve their privileges by the preparation of “universal” institutions created to abolish all types of dictatorship, protect civilians in all corners of the world—spreading liberal culture and practices. The struggle against poverty, sufferance, and ignorance, which have in the past been the pretext to justify socio-economic intervention by governments and the domination of political classes, has now reappeared as planetary welfarism. And this new statism is aimed at creating a technical-structural monopoly capable of imposing its own wishes on everyone.
The contemporary humanitarian liberal agenda, which caused the most recent conflicts, is something truly paradoxical and contradictory. The attempt to justify war by the political classes of NATO was shielded by the championing of individual rights. The crimes committed by those who bombed the civilian Serbian population were justified with constant referral to the civilians’ situation in Kosovo. Thus, States disappeared and the war appeared to be what it actually was—a conflict between individuals, groups, and coalitions. War returned to being something similar to the medieval feud, even if it had no moral legitimacy. By refusing to confer upon Milosevic’s Serbia the traditional dignity granted to States, the Western allies showed the very nature of their own institutions. In its hypocritical appeal for individual rights of Kosovo’s citizens, NATO was forced to ignore the rights of Yugoslavia as a State and thus to accept the view of European realism and American libertarianism. This bloody episode shows that the same logic, which could lead to a world government, could also lead in the opposite direction. The return of individual and ethnic rights, even only as an excuse for political imperialism, could favor the dissolution of Nation-States, of large continental empires, and of mainstream political culture.
Many libertarians have singled out international relationships among individuals in times of peace as examples of contractual agreements, voluntary jurisdiction, and minimal coercion. We may witness a fundamental change: The conflict between liberty and coercion will continue to make its mark on human history in the future, and the international arena will probably be a more important battlefield than the domestic one.
Chapter 1 of The Myth of National Defense, edited by Hans-Hermann Hoppe (Auburn, AL: Mises Institute, 2003), pp. 21–64.
1. Murray N. Rothbard, Power and Market (Kansas City: Sheed Andrews and McMeel, 1977), p. 14.
2. David Gordon, “Deliverance,” review of Martin van Creveld, The Rise and Decline of the State (Cambridge, U.K.: University Press, 1999), Mises Review 6, no. 2 (Summer 2000): 1.
3. Ludwig von Mises, Human Action: A Treatise on Economics (Auburn, Ala.: Ludwig von Mises Institute, 1998), p. 74.
4. Ibid., p. 75.
5. Christopher Pierson, The Modern State (London and New York: Routledge, 1996), p. 35.
6. Rothbard wrote that “the Marxists have spent an enormous amount of their time and energy grappling with problems of strategy and tactics, much more so than have laissez-faire thinkers.” Murray N. Rothbard, “Concepts of the Role of Intellectuals in Social Change Toward Laissez Faire.” Journal of Libertarian Studies 9, no. 2 (Fall 1990): 43.
7. Eli Sagan, At the Dawn of Tyranny: The Origins of Individualism, Political Oppression and the State (New York: Vintage Books, 1985), p. xxi. It definitely shows that the author is studying his group from a quite Euro-centric perspective. On the one hand, these exotic cultures and their achievements are “measured” against standards that are simply impossible to match; on the other, their histories should teach the heirs of Athens, Florence, and hundreds of other centers of Western civilization something about their own history.
8. Ibid., p. xx.
9. Ibid., p. 261.
10. James G. Frazer, The Early History of Kingship, quoted in Bertrand de Jouvenel, On Power: The Natural History of Its Growth (Indianapolis, Ind.: Liberty Fund, 1993), p. 71.
11. Ludwig Gumplowicz, European Sociology: The Outlines of Sociology (Philadelphia: American Academy of Political and Social Science, 1899), p. 116.
12. Max Weber, Economy and Society, Guenther Roth and Claus Wittich, eds. (New York: Bedminster Press, 1968), vol. 2, p. 905.
13. Ibid., p. 909.
14. Franz Oppenheimer, The State, John Gitterman, trans. (San Francisco: Fox and Wilkes, 1997), pp. 124–25.
15. Ibid., p. 9.
16. Ibid., pp. 32 and 31.
17. Ibid., pp. 32 and 31.
18. We must bear in mind that such a tradition has also been used to justify socialist solutions to social problems. The most famous example is to be found in Durkheim’s The Elementary Forms of Religious Life, translated and with an introduction by Karen E. Fields (New York: Free Press, 1995), which had a lasting impact on Marcel Mauss and his school. The central thesis of Durkheim is that religion is a structure finalized to cement social bonds in a collectivist logic.
19. On the modernity of the State, one of the best single accounts is still The Formation of National States in Western Europe, Charles Tilly, ed. (Princeton, N.J.: Princeton University Press, 1975). There is an immense body of scholarship on the subject, dating back to the early twentieth century. Not surprisingly, most of the literature comes from the German-speaking world (Carl Schmitt, Otto Brunner, Otto Hintze, just to quote the most famous authors), and it can be considered a reaction against the work of the previous generation. It was in fact the somewhat unconscious and hidden “research program” of the German jurists of the nineteenth century (George Waitz, Max von Seydel, Paul Laband) to consider any form of political association a “State.” Some scholars of ancient history and even some modern historians deny the “modernity” of the State and of the cluster of political concepts connected with its birth, and feel free to discuss “sovereignty” in ancient Greece, or the birth of the “archaic State” in Mesopotamia. To us, this seems to be part of the dream and illusion of Jus Publicum Europaeum; i.e., to call State any form of political association, jurist any political thinker, and to pigeonhole in the sovereignty paradigm every political community. In any case, we believe that the burden of proof should fall on the historian’s shoulder: it is incumbent upon him and not us (certainly no experts on antiquity) to show the usefulness of the “sovereignty” paradigm in describing ancient polities. In other words, it is the historian who should prove the relationship between the ancient institutional realities he is studying and the State.
20. Heinz Lubasz, “Introduction,” in The Development of the Modern State, Heinz Lubasz, ed. (New York: Macmillan, 1964), p. 1.
21. Gianfranco Poggi, The State: Its Nature, Development and Prospects (Stanford, Calif.: Stanford University Press, 1990), p. 25.
22. Michael Oakeshott, On Human Conduct (Oxford: Oxford University Press, 1975), p. 185.
23. Charles Tilly, “Reflections on the History of European State-making,” in idem, The Formation of National States in Western Europe, pp. 24–25.
24. Bruno Leoni, Freedom and the Law (Princeton, N.J.: D. Van Nostrand, 1961), pp. 119–20.
25. Charles Howard McIlwain, The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages (New York: Macmillan, 1932), p. 367.
26. Niccolò Machiavelli, The Prince (1516), translated with an introduction by George Bull (London: Penguin Books, 1961), p. 33.
27. George H. Sabine, A History of Political Theory (New York: Henry Holt, 1937), p. 351.
28. Machiavelli, The Prince, p. 105.
29. One need only to think of the Latin phrase “ubi societas, ibi jus” (which clearly means only that where there is organized society there must be some rules), which is still translated by many jurists as “where there is a society there must be a State.” This timeless notion attached to the State is also a peculiar aspect of the secularization of theological concepts, in this case eternal life. As Schmitt put it: “All significant concepts of the theory of the modern state are secularized theological concepts.” Carl Schmitt, Politische Theologie: Vier Kapital zur Lehre von der Souveränität (Munich: Duncker and Humblot, 1922), p. 49.
30. Niklas Luhmann and Raffaele De Giorgi, Teoria della Società (Milano: Angeli, 1994), p. 183.
31. Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), p. 162.
32. Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good, translated by J.F. Huntington, foreword by Daniel J. Mahoney and David Des Rosiers (Indianapolis, Ind.: Liberty Fund, 1997), p. 208.
33. Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, edited and translated by Julian H. Franklin (Cambridge, U.K.: Cambridge University Press, 1992), p. 1. The book first appeared in 1576, but modern translations rely on the 1583 edition.
34. Jean Bodin, Les six livres de la Republique (Paris: Jacques du Puys, 1577), vol. 1, chap. 8.
35. While we see the birth of the “institution” in Bodin’s political thought, Hobbes performs pretty much the same task for Martin van Creveld, in Rise and Decline of the State. In any case, both absolutist thinkers appear modern compared to the Machiavellian anthropomorphic reflections on politics.
36. I now accept … that the link between the two [State and sovereignty] can and must be severed, and that, when this is done, the concept of sovereignty can be reformulated and reclaimed.” John Hoffman, Sovereignty (Minneapolis: University of Minnesota Press, 1998), p. 2.
37. Charles L’Oyseau, Traicté des Seigneuries (Paris, 1609), p. 24, quoted in de Jouvenel,Sovereignty, p. 215.
38. Hans-Hermann Hoppe, The Private Production of Defense (Auburn, Ala.: Ludwig von Mises Institute, 1999), p. 1.
39. Creveld, Rise and Decline of the State, p. 179.
40. Thomas Hobbes, Leviathan (1651), edited and with an introduction by Crawford B. Macpherson (Harmondsworth, U.K.: Penguin Books, 1968), pp. 232–33.
41. Considering how, in the past three centuries, States have managed to maintain peace and protect individual rights, the failure of both the Hobbesian and Lockean frameworks must be acknowledged.
42. John Locke, Two Treatises of Government, edited with an introduction and notes by Peter Laslett (Cambridge, U.K.: Cambridge University Press, 1988), p. 412. Although published anonymously in 1690, this work was actually written almost a decade earlier, as Peter Laslett has definitively demonstrated, and thus it cannot be considered a rationalization of the “Glorious Revolution,” as the Marxist school has always maintained.
43. Jean Jacques Rousseau, The Social Contract and Discourses, translated with an introduction by G.D.H. Cole (New York: Everyman’s Library, 1950), p. 18.
44. Frédéric Bastiat, The Law and Clichés of Socialism (Whittier, Calif.: Constructive Action, 1964), p. 10. La Loi was first published in June 1850 as a pamphlet.
45. Gustave de Molinari, “De la production de la sécurité,” Journal des Économistes VIII (March 1849): 277–90. This article has been translated by J. Huston McCulloch, “The Production of Security,” Occasional Paper Series, no. 2 (New York: The Center for Libertarian Studies, 1977).
46. Gustave de Molinari, “Production of Security,” pp. 3–4.
47. Gustave de Molinari, “De la production de la sécurité,” Journal des Économistes VIII (March 1849): 277–90. This article has been translated by J. Huston McCulloch, “The Production of Security,” Occasional Paper Series, no. 2 (New York: The Center for Libertarian Studies, 1977).
49. Ibid., p. 8.
50. Ibid., p. 12.
51. Ibid., pp. 14–15. Hoppe recognizes the paramount importance of Molinari’s vision in a recent critique of classical liberalism:
If liberalism is to have any future, it must repair its fundamental error. Liberals will have to recognize that no government can be contractually justified, that every government is destructive of what they want to preserve, and that protection and the production of security can only be rightfully and effectively undertaken by a system of competitive security suppliers. That is, liberalism will have to be transformed into the theory of private property anarchism (or a private law society), as first outlined nearly 150 years ago by Gustave de Molinari and in our own time fully elaborated by Murray Rothbard.
Hans-Hermann Hoppe, “The Future of Liberalism: A Plea for a New Radicalism,” Polis 1 (1998): 140.
52. See Carl Schmitt, The Concept of the Political (1932), translation, introduction, and notes by George Schwab (Chicago: University of Chicago Press, 1966).
53. Hans Kelsen, General Theory of Law and State (Cambridge, Mass.: Harvard University Press, 1946).
54. Schmitt, Concept of the Political, p. 38.
55. Vilfredo Pareto, Libre-échangisme, protectionnisme et socialisme (Geneva: Droz, 1965), p. 33.
56. See Gaetano Mosca, Saggi politici (Torino: Utet, 1980), p. 621.
57. Bruno Leoni, Freedom and the Law, p. 140.
58. Gianfranco Miglio, Le regolarità della politica (Milano: Giuffrè, 1988), p. 757.
59. Rothbard, Ethics of Liberty, p. 161.
60. Murray N. Rothbard, For A New Liberty: A Libertarian Manifesto (Lanham, Md.: University Press of America, 1985), p. 24.
61. Rothbard, Ethics of Liberty, p. 162.
62. Albert J. Nock, Our Enemy, The State (San Francisco: Wilkes and Fox, 1992), p. 22.
63. The consequences of this analysis are that
the State is a coercive criminal organization that subsists by a regularized large-scale system of taxationtheft, and which gets away with it by engineering the support of the majority (not, again, of everyone) through securing an alliance with a group of opinion-moulding intellectuals whom it rewards with a share in its power and pelf. (Rothbard, Ethics of Liberty, p. 172)
64. Rothbard, For A New Liberty, p. 50.
65. Oppenheimer, The State, p. 14.
66. The English-speaking world has been very suspicious of both Carl Schmitt and Otto Brunner, in part because of their intellectual ties with the Nazi regime, so that serious studies of their theories began quite late compared to other Western countries like Italy and France. The 1939 edition of Brunner’s Land und Herrschaft, for instance, is full of “Volksgeschichte,” “Volksordnung,” and Nazi jargon; in 1959, he “cleaned up” his book and published a quite de-Nazified fourth printing. The English and Italian translations are based on the 1965 expanded edition. See Otto Brunner, Land and Lordship: Structures of Governance in Medieval Austria, Howard Kaminsky and James Van Horn Melton, trans. (Philadelphia: University of Pennsylvania Press, 1992). See also the translators, introduction (pp. iii–lxiv) for a good discussion of Brunner’s Nazism.
67. Brunner, Land and Lordship, p. 36.
68. Bruno Leoni, “The Law as Claim of the Individual.” Archiv für Rechts- und Sozialphilosophie(1964): 698–701. (This article is now in Freedom and the Law, expanded third edition, foreword by Arthur Kemp (Indianapolis, Ind.: Liberty Fund, 1991), pp. 189–203.
69. Brunner, Land and Lordship, p. 41.
70. Ibid., p. 42.
71. Ibid., p. 29.
72. Ibid., p. 93.
73. St. Thomas Aquinas, Summa Theologica, p. 91, art. 3.
74. Ibid., p. 91, art. 1.
75. Jean Baechler, Les origines du capitalisme (Paris: Gallimard, 1971).
76. Bruce L. Benson, To Serve and Protect: Privatization and Community in Criminal Justice(New York: New York University Press, 1998).
77. Hans-Hermann Hoppe, “Small is Beautiful and Efficient: The Case for Secession,” Telos 107 (Spring 1996): 95–101.
78. D. Held, Democracy and the Global Order (Cambridge, U.K.: Polity, 1995).
79. Charles Tilly, “War Making and State Making as Organized Crime,” in Bringing the State Back In, Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol, eds. (Cambridge, U.K.: Cambridge University Press, 1985), p. 181.