by David D’Amato
Around the world, from the North Atlantic to Anatolia, political and economic instability have stimulated a reassessment of the requirements of constitutional government. In what seems to be an acknowledgment of the new realities of the Information Age, the political class has stressed popular involvement in the drafting process, a “participatory” approach to overhauling the foundations of the legal framework. “Iceland,” reports the Washington Post, “is trying to do just that, by crowdsourcing its new constitution to its citizens through social media.” Cries for popular participation are no less vociferous in Turkey, where—in the wake of the Arab Spring—a recent election has prompted calls for a completely new constitution. Opening the process of shaping the law to the body politic is an important step in the right direction, but it need not stop at merely tweaking a constitution. In fact, the practical benefits of popular participation in shaping the contours of the law suggest that a single starting point for law, a static authority like a written constitution, is neither necessary nor desirable. The useful insight embedded in the “crowdsourcing” approach to constitutional government is its implicit rejection of a top-down blueprint for the law. Whether its advocates realize it or not, Friedrich Hayek’s concept of “spontaneous order” is the core of the participatory model. What’s more, the logic of that concept requires us to go well beyond just the replacement of a constitution; it insists on the replacement of the state itself.
We might wonder, in a society without the arbitrary authority of the state, wherefrom the just authority of the law would derive. The absence of self-anointed rulers and their capricious edicts presents a question of what the substance of the law would be, of where we might find its content and how we could ensure its legitimacy. And although there is a general and prevailing assumption that we need the overriding, centralized supremacy of the state to have law and order, there is reason to believe that indeed the opposite is true, i.e., that law and order are impossible under the direction of the state. Today, in places like Iceland and Turkey, the tension between the rational coherence of spontaneous order and the inertia of illogical, traditional ideas about government is at center stage. The problems inherent in economic planning thus provide an especially apposite analogy to those of legal planning. Just as Hayek observed of the economy that the knowledge necessary for order “never exists in concentrated or integrated form,” neither is it possible for “a single mind” to concoct the legal framework. Still, once the structural problems of an exclusive source of law have been established, it is no more clear where society ought to look for credible rules governing human action and implementing the libertarian nonaggression principle.
International law (or “the law of nations”), though, offers important lessons and guiding principles regarding how the law might be formulated in a free, stateless society. Since, as Joseph Stromberg noted, international law “involv[es] relations between theoretically independent actors answering to no superior,” we can employ it as a template for how the law might manifest itself in a society where individuals themselves were — like states are today — sovereign and self-governing. Through these analogical analyses, we can begin to develop a picture of the law in free market anarchy, of how we might constitute it without the state.
Hayek’s foremost insight, that the diffuse nature of knowledge makes economic planning unworkable, is also applicable to the law. The advantage of the free market’s price mechanism is its ability to rectify and counteract economic imbalances, to discover, through the aggregate of thousands of distinct, individual decisions, what a given price should be. “Should” in this context is not an expression of some individual or group’s groundless megrims, as under state planning, but of voluntary society’s collective judgment as to the proper worth of a good or service. That judgment is collective only in the sense of representing the sum or totality of all consensual, mutually beneficial exchanges in the free market. By the fact that the market process does not coercively impose anyone’s subjective preference on anyone else, that process is left free to set price where it will most accurately reflect all of the manifold factors underlying it. “The free market’s effects,” explained Robert Murphy, “are far from arbitrary. Every time you spend three dollars on tomatoes, you are ultimately ‘voting’ for some of the nation’s scarce farmland to be reserved for tomato production.” The free market, then, can be contemplated as a form of direct democracy, one that gives voice and weight to our tastes through a completely nonaggressive mechanism. Where the planned, state-interventionist economy confines economic decision-making to a handful of power elites, the free market “open sources” those decisions, allowing unhampered trade to determine the allocation of societal wealth and resources. The mere fact that there is no overarching, central design for the economy at large therefore does not portend disaster, but instead enlists the particularized acumen of each individual to solve the knowledge problem that Hayek identified.
Similarly, the practices of individuals in a free society, from their contracts to the requirements of homesteading land, could be drawn upon to generate, expand, and give nuance to a system of law. As Hayek expounded:
It would . . . probably be nearer the truth if we inverted that plausible and widely held idea that law derives from authority and rather thought of all authority as deriving from law — not in the sense that law appoints authority but in the sense that authority commands obedience because (and so long as) it enforces a law presumed to exist independently of it and resting on a diffused opinion of what is right (emphasis added).
Hayek therefore appealed to what David Osterfeld calls “reciprocity of expectations” — the same kind of mutual consent that obtains in market transactions — to furnish the proper foundations for the law. As against the law as it exists today, superimposed on society from without, its vitality in a society without the state would issue from its composition from voluntarily undertaken customs. And just as with Professor Murphy’s tomatoes above, the objectivity of the law would accordingly ensue from competition between, for instance, different courts, from the fact that no single officialdom would be empowered to declare what the law is. Were the functions of the judiciary, in Murray Rothbard’s phrasing, “marketable and marketable only,” protection against poor quality and unsupported, arbitrary judicial opinions would be immanent in the incentives and tendencies fostered by the free market. International law, as has been widely noted by writers such as Stephan Kinsella, is “less restricted by positive law and legislation,” and therefore more open to “traditional concepts of justice.” Insofar as a market anarchist society would have no commanding legislative body (such as those that are responsible for framing most domestic law today), legal positivism would likely be supplanted by a more holistic understanding of the law. Legal positivism, roughly defined, is a philosophy of law, developed by utilitarians such as Jeremy Bentham (who, coincidentally, coined the phrase “international law”), that regards law as a manmade artifice instituted to achieve particular results.
Positivism, then, leaves little room for, in the words of international law scholars Mark Weston Janis and John E. Noyes, “general principles, fundamental norms, natural law, or equity.” It rather severs the structure of the law from the notions of individual rights and natural law that have long been at the heart of the Austrian School philosophical tradition. Opposite the overly-empirical, mechanistic approach of positivism, Rothbard and others proposed a radical return to the natural law thinking of philosophers such as St. Thomas Aquinas and Hugo Grotius. In is no coincidence that such natural law thinkers should be so intimately linked to the development of international law, which they thought preexisted even the consensual interrelations of states. If a rationally-discoverable natural law existed prior to and outside of state sovereignty, then, Grotius contended, “part of this natural law is the primary or primitive law of nations, differing from the secondary or positive law of nations, which is mutable.” Late scholastics like Francisco de Vitoria likewise resorted to international law as a component of natural law in condemning the treatment of the Indians by Spain’s conquistadors.
Absent the state’s categorical sway over the law, the revival that Rothbard hoped for might come to fruition, with its theoretical groundwork laid by the Thomistic fathers of international law. Even today, the international law concept of jus cogens, though often regarded as a thing apart from natural law, draws on similar underlying principles. Jus cogens, as defined by Janis and Noyes, expresses the notion of a “compelling norm,” one that applies regardless of a state’s acceptance of it. On some level, then, it reflects Rothbard’s idea that “rational natural law [should] be used as a guidepost for shaping and reshaping” the law, bringing custom into conformity with it. So while customs and practices are properly a vital element in a stateless legal system, they must ultimately be rooted in what Hans-Hermann Hoppe called the “praxeological, axiomatic-deductive method.”
With jurists finally able to refer to a rational substratum of natural law, the words of the U.S. Supreme Court in its famous opinion in The Scotia case could appropriately be brought to bear on individuals as opposed to states. Writing for the Court, Justice William Strong stated that the law “is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct.” The relationship between Rothbard’s prescription of natural law and the “generally accepted” rules that Strong heeded is readily apparent. In the same way that the currents of the free market are the most effective way of avoiding arbitrarily-established prices, so too are noncompulsory market relations the ideal way of ascertaining the requirements of natural law. These two sources of law — custom and natural law — presuppose and build upon one another. Once the nonaggression principle forms the basis for society, eliminating the hierarchical control of the state, we can begin to glean and to apply those canons of international law that articulate the libertarian philosophy.
The ground-up movements of the Arab Spring, with their lack of reliance on central leadership and design, have cast a light on the abilities of purely voluntary networks of people. Whether nations will draw on those abilities in a meaningful way is yet to be seen. Still, many of the age-old assumptions about law and order—assumptions that Austrians have long undermined—are beginning to wither away. We have every reason to believe that the future will belong to free markets, to “spontaneous order” rather than the “hegemonic principle.”