The book I will discuss below develops and defends the idea of law without a state. The book’s blurb tells us the following:

This book elaborates and defends the idea of law without the state. Animated by a vision of peaceful, voluntary cooperation as a social ideal and building on a careful account of non-aggression, it features a clear explanation of why the state is illegitimate, dangerous, and unnecessary.

It proposes an understanding of how law enforcement in a stateless society could be legitimate and what the optimal substance of law without the state might be, suggests ways in which a stateless legal order could foster the growth of a culture of freedom, and situates the project it elaborates in relation to leftist, anti-capitalist, and socialist traditions.

So ends the blurb of the book by American legal scholar and professor at Tom and Vi Zapara School of Business at La Sierra University (California), Gary Chartier, titled Anarchy and Legal Order: Law and Politics for a Stateless Society. The aforementioned constitutes exactly what Chartier does in his 400 page plus study. Below is a discussion of this work.

Ideological background

According to his literary references the author can be placed ideologically in the realm of what is referred to in North-America as libertarianism. Chartier does not keep this a secret. The literature he uses comes from the ideological corner of Murray Rothbard. The range in which Chartier works is however much larger. It stretches from what can be called “free-market capitalism” to anti-capitalism and socialism (‘free’ as in free-market without a state). Does one not exclude the other?

Chartier claims it does not. He employs his own logic. One of the conditions he maintains is one of consistent statelessness. Therein lies a significant difference with the icons of the neo-liberal economy such as Friedman and Hayek. For their ideas, in order to succeed, must rely on government partnership and preferably under dictatorial leadership – as the Chicago-boys in Pinochet’s Chile have shown. In Chile the neo-liberal economy of Friedman thrived with its iconic invisible hand (market) backed by the iron fist (dictatorship). This is a system Chartier rejects out of hand, with reference to the book by American writer Kevin A. Carson, The Iron Fist Behind The Invisible Hand, corporate capitalism as state-guaranteed privilege, (2002).

For Chartier the state represents all that is undesirable. In great detail he shows that the state is illegitimate, aggressive, unnecessary and dangerous. The state disrupts and prevents: anarchy. Chartier defines anarchy as a social order based on peaceful, voluntary cooperation of people without a state. The distorting effect of the state makes a number of recurrences in Chartier’s argument. Here many (continental) anarchists are reminded of William Godwin (1756-1836), one of anarchism’s fore-bearers. Two centuries ago he taught that the imposition of even a just action through authority removes all its possible laudable effects (see his Enquiry Concerning Political Justice and its influence on general virtue and happiness; 1793). [3]

Chartier observes that the ideas of American individualist-anarchist Benjamin Tucker and British author Thomas Hodgskin are hidden within his book. When referencing both these names Chartier mentions that he has also learned from those who engaged with the work of these forebears (among whom we encounter the famous Voltairine de Cleyre, Lysander Spooner and Herbert Spencer).

A basic code of conduct

The design and development of Gary Chartier’s arguments reflects his legal education. The construction of his argument takes on a hypothetical form of reasoning, which — how else could it — leads to many hypothetical inferences. This is not surprising, as the only references to a stateless society are found in historical-anthropological studies. For those I refer to the 179th issue of AS themed Anarchism and Law.

Chartier bases his argument on a set of three principles, namely, (1) the principle of recognition, (2) the principle of justice, and (3) the principle of respect. The first principle calls for everything, that can serve as real aspects of well-being, to be acknowledged as matters worth striving for. The second principle protects against making arbitrary distinction in action. The third principle is aimed at the prevention of various forms of harmful action. The author goes on to explain intricately the range of applications these principles have for his anarchist jurisprudence.

In fact all three — recognition, justice, respect — come together in the construction of a nonaggression maxim. This provides a basic code of conduct and a basic system of property rules. These property rules only apply to physical things, not to unobservable phenomena. With the latter he refers to a phenomenon such as slavery, that can’t be justified with or without property. It also does not fit within a social order based on peaceful, voluntary cooperation.

The system of law he introduces requires the consent of those who cooperate. This creates different forms of cooperation, each with their own center. Consequently multiple legal systems become a possibility, in his view a polycentric legal order arises and we can speak of polycentic law (there is therefore a multitude of orders and of law). This refers to an anarchist theory of law, which mainly deals with the various ways of maintaining interpersonal relationships. It encompasses social realms that do not require a state. For a general idea about law without a state Chartier refers explicitly to — among others — the work of Henc van Maarseveen and I (Law and Anarchism, 1982).

A product of aggression and dominance

Chartier takes the position that the state is an instrument for conquest and is a product of aggression and dominance. Here he recognizes the origin of the ruling class in combination with the constant pursuit of power. Here we encounter a reference to Franz Oppenheimer, who, in the beginning of the 20th century, in his study The State (1914), referred to it as a conquest-state.

Chartier does not leave it at that. He shows that states act like geographical monopolists and actively engage in land grabbing. To add to his point about the relationship between the state and the ruling class he uses an appropriate example, namely the Enclosures (the enclosure of communal pastures). A few centuries ago this was a process carried out by the landed aristocracy in modern day England, backed by state-guaranteed privilege (such as the Acts of Enclosure).

The same pattern, Chartier remarks, can be identified in colonial North-America: the use of violence against native Americans and the theft of their land. If one looks at Latin-America’s latifundias (a form of enormous private land ownership) there is no difference. In short, wealth is an effect of what? Of feudal land theft, which continued during the enclosures, in the development of America, in the worldwide slave trade. And this continued and evolved into more modern forms.

Advantaged groups benefited from the existence of legally guaranteed injustice, injustice embodied by state legal systems in the form of structural state privilege. The state thus privileges the rich and torments the poor, according to Chartier. The question this raises for me is: how do we shift away from this unjust system? Will the rich give in? I don’t think so. So, do we need a social revolution? Chartier’s study does not treat this subject.

The acquisition of consent

Chartier develops his hypothesis into the idea that people can cooperate peacefully and voluntarily without the existence of a state. To him this means that there is good reason to find an alternative for the state. That alternative acts as a foundation for peaceful, voluntary cooperation. The adoption of such an alternative means that people accept a consent-based legal order (over the current imposition-based legal order).

It concerns an order in which not only legal rules protect peaceful, voluntary cooperation but also the acceptance of the order’s authority itself is based on peaceful, voluntary cooperation (the acquisition of consent). In such an order no one is subjugated to an obligation that does not follow directly from previous informed consent. The necessary acquisition of consent contributes to the creation of the aforementioned polycentric legal order and the development of polycentric law. As a result different types of legal regimes of territorial and non-territorial nature arise (laid down in fair treaties, based on agreement, consent, and contract). As a good legal scholar would Chartier works out his assumptions with a high degree of sophistication.

In my view this leaves room for a development towards a polycentric-federalist political organization. In contrast to Chartier’s more private-law elaboration, thinkers like Proudhon, Bakunin, and Kropotkin and further anarchists have sought solutions in political-law, through dealing with issues of decentralization and federalization. Whether this can result in convergence between private- and political-law could be investigated. I’ll end that discussion here, as it goes beyond the scope of this review.

Meanwhile the reader might question whether the alternative Chartier proposes will work out, will function. There is little to say with much certainty. There are reasons to suggest why there is a chance of success. In order to say something about anything I will look at the Dutch situation.

Instances of state-failure

There is no denying that a few things the government does turn out well. But aren’t these all things that could be done just as well without the existence of a state? For example by an agreement-based legal regime. In numerous other cases moments of failure arise within state institutions, which then cause billions in financial losses. The state is not a guarantee that things are done well. In fact it regularly goes south. If we only look at the most serious cases, namely those which lead to parliamentary inquiries, we find enough evidence for the latter.

In what areas did the state go wrong and in what areas did the taxpayer cover the costs well into the billions? From 1982 going forwards I compiled a selection of affairs which led to parliamentary inquiry: in shipbuilding, construction grants and construction fraud, the failing supervisory bodies and financial systems, and the affairs concerning infrastructure projects such as the Betuwelijn, High Speed Line, and Fyra. [4] Even an IT-job at the Ministry of Defense lead to complete disorder. It is obviously not in the ability of the state to even do its job in simple practical affairs. Of course this does not mean things can’t take unexpected turns in the private business world as well.

One thing is clear: the state regularly messes up. It is in that way redundant and can be dismantled. Yet people will be worried. How will we organize the protection of the weak (the children, the old, the disadvantaged) in our society? Do we not have to worry about the environment or crime? Must we not defend ourselves against outlaws?

Protection-services in a stateless society

Chartier does not deny the possibility that problems and conflicts may arise, that the environment may be polluted, that there may be those who’s behavior actively obstructs the agreements made by others on basis of consent. He pays particular attention to phenomena such as crime. In doing so he uses an inductive-probabilistic explanatory model. He makes the following point.

Today we live under state guided circumstances. That means circumstances governed by power: a ruling class is able to utilize the state apparatus in such a way that the populace must provide an enforceable output. Much of this output would not be supplied without the state’s existence. Because consent is missing the statist system must be considered illegitimate. The statist system structurally maintains a system of redistribution that favors a wealthy caste and leads to (social) injustice. This can be shown using a variety of expressions and examples.

One only has to look at the banker’s bonuses and golden handshakes given to high ranking business executives to see the clear division between rich and poor. In such a non-consensual situation state authority can only maintain itself through violence. It works according to, what I call, a one-sided compliance with authority.

Would the state be dismantled and society be based on peaceful, voluntary cooperation it would lead to a social situation in which the ruling class dissolves. That society will have many legal regimes, all based on treaty and contract law (a consensus-system). In order to respond to undesirable issues (environmental protection) a strong legal system will be furnished for the purpose of compensation and indemnification.

Chartier is also convinced that a just legal regime directs itself against the injury of non-human animals and vulnerable persons. I assume that this is tantamount to offer protection to those in need, such as when (some) children find themselves in untenable situations (because they have a different skin color, or belong to an outcast group — like the Roma –, or are heavily neglected by their family).

The relationship between a just legal regime and crime becomes more clear. Chartier rightly points out that crime is a statist category and that criminal law is an instrument of state power. The state has the power of definition. This power expresses by means of a list of specific offenses whose “morality” prevails, inescapably this is the morality of capitalism (if it even has morality). Life in a just society — an anti-capitalist society according to Chartier — predicts that crime rates will decline. This is not an odd thought. The state needs the criminal justice system to exert its threats. These threats must ward off attacks on the ruling class and the predatory system on which it subsists. This is partly a function of the state. The state defines what is considered crime, its definitions logically related to the state’s own function. Replace this model by the alternative to which Chartier is so committed and the crime rate, as is his hypothesis, will drop significantly.

Here we encounter a parallel with the objection to criminal law as recently expressed in the French weekly anarchist newspaper Le Monde Libertaire (issue no. 1747, 3-9 July, 2014):

The prison, the house of detention, the incarceration, forced “rehabilitation”, all these forms of coercion are built on the four pillars of capitalism: exploitation, deprivation, oppression and contempt. Is is for that reason that the anti-capitalist struggle is necessarily a struggle against detention. We believe that capitalism makes use of incarceration and the prison system to undermine the social struggle and to weaken, disrupt, paralyze, and destroy the resistance.

Now it is also understandable why crime is in fact allowed to thrive in a statist situation: it creates the legitimacy for the existence of a criminal justice system. Therefore detention does not act to reduce crime. For more than a century it is known that prisons are recidivist institutions. Following the results of a large-scale research the French daily Le Monde once headlined, “How French prisons produce recidivism”. Statistical data showed that 60% of those sentenced to prison were sentenced yet again within 5 years of release (Le Monde, October 15th, 2011).

It is clear that we live in a world — a statist one — in which, for example, organized crime is generated: corruption, disguised gangsterism, seedy affairs in what is called “sports” (“sold” games, betting, doping, prostitution, Qatar-like affairs). This has everything to do with capitalism. Or as the early 20th century French physician and criminologist A. Lacassagne once remarked, “Societies have the criminals they deserve”. A state society thus knows crime, much of which will be unknown in a stateless society. Chartier’s hypothesis is anything but bold.

Leftist, anti-capitalist and socialist

The legal and political project that Chartier has set up with his book he calls leftist, anti-capitalist, and socialist. He understands these characteristics as traditions in which certain goals are pursued, without the use of statist means. He calls his project leftist because it is motivated by left-wing themes that generate resistance against oppression, exclusion, poverty, and war. In his view embracing anarchism is an effective means to achieve the left’s main goals.

The project is anti-capitalist because the justified legal rules and legal institutions in a stateless society will undermine and abolish the privileges and social domination of the capitalists. Chartier distinguishes five types of capitalism. Each type he characterizes with one core concept: (1) voluntary association, (2) private-public partnership, (3) management by capitalists, (4) political-economical status quo, and (5) hyper-commercialization. The first type he accepts and the rest he rejects outright.

The first type he describes as: an economic system that utilizes the protection of justified property and the voluntary exchange of goods and services. In the aforementioned text we have already been able to ascertain what falls under unjustified claims of property (such as the acquisition of wealth based on theft, going back to feudalism). The four rejected types of capitalism accommodate the modern forms of theft, such as cases where there are privileged connections between corporations and government, the domination of workplaces and society by capitalists, so that a relatively small group of people manages the wealth and the means of production.

I can follow this line of thinking under the following condition. The state is not the only institution that threatens freedom. There is also something called “structural violence” and one of its sources is (excessive) wealth. This means that under an alternative model of society based on freedom there must also be an economic basis of social equality. We know how formal equality, without the abolition of large (economic) inequality, turns out. It is everyone’s right to sleep under the bridges of Paris, but not everyone has to… This problem has been summarized by Bakunin, “Freedom without socialism means privilege and injustice; and socialism without freedom means slavery and oppression”.

Chartier responds immediately. According to him his project can also be understood as socialist because it connects with other anti-state socialists. They aim to solve the “social question” by decisively encouraging unadulterated, radical social cooperation. The first author Chartier mentions is the early 19th century English political-economist, Thomas Hodgskin. Hodgskin provides a sharp critique of the inequality of positions in trade — distorted by privilege –, becoming a source of unjust economy. For those who agree a hostility towards capitalism is fostered alongside a sympathy for the working class.

Socialism is not only a critique of capitalism or an adherence to the labor theory of value, it is also a constructive philosophy of social management. Certainly many socialist authors think of a state contribution to this “social management” (or actively advocate it) and thus legitimize the existence of a state. It is precisely this which free-market anarchists reject. And they are not alone: every anarchist does.

Chartier summarizes this discussion and remarks that: given that socialism encourages the establishment of institutions to undermine oppression and theft, there is no reason not to recognize Hodgskin as a socialist. Then the opportunity is provided to categorize such institutions as the effects of “peaceful, voluntary cooperation”. The latter is reinforced when Chartier puts forward late 19th century anarchist Benjamin Tucker as someone who as a socialist favors peaceful, voluntary cooperation through trade and rejects state-guaranteed privilege.

During further consideration of this issue other American anarchists make their appearance such as Benjamin Tucker’s mentor Josiah Warren (1798-1874) and Lysander Spooner (1808-1887). The latter spent time as a lawyer, abolitionist, supporter of the labor movement, and started a postal service in 1884 with which he competed with the American government. The American government caused bankruptcy of Spooner’s company after legal attacks. The mentioned authors are traditionally seen as being part of individualist-anarchism. Chartier places them in the category of anti-state socialism.

Peaceful, voluntary cooperation

A credible anarchist project must engage itself with attacks on the many facets of capitalism: state protected privilege, social domination by elites, the canonization of trade, in short the economic apparatus which governs our world. Therefore it makes sense to give insight into how anarchist law and anarchist politics (not in the sense of “party politics” seeking a position alongside parliamentarism) attempt to undermine capitalism, says Chartier.

Chartier also coins two terms, political- and cultural anarchism. The former expresses a live and let live attitude (rejecting the state) and the latter refers to a peaceful undermining of hierarchies in businesses, communities, families, churches and other social institutions. It promotes the personal freedom of self-development, self-identification and self-expression, etc.

The anarchist legal project, as he has built up using a large amount of hypothesis, therefore features side-by-side (a) the ideal of peaceful, voluntary cooperation (the stateless model) and (b) the current — rejected — reality of the ruling state model. His text constantly illustrates this dichotomy. Chartier continually unravels the elements with which the state expresses itself in order to describe the elements out of which the alternative model will be built up. All the while he develops an anarchist legal theory and shows ways in which it can be applied. And no one can blame him for profiting financially by means of his project; all author’s royalties received for the book are donated to the libertarian anti-war movement.

CHARTIER, Gary, Anarchy and Legal Order, Law and Politics for a Stateless Society, Cambridge University Press, New York, 2013, 416 pages. $37.99

Remarks:

[1] AntiWar  about itself: “Our dedication to libertarian principles, inspired in large part by the works and example of the late Murray N. Rothbard, is reflected on this site”. Click here.

[2] The political and anarchist considerations of Chartier’s book are an object of study and commentary at the Center for a Stateless Society.

[3] As a social policy the Salvadorian government gives seed and fertilizer to 400,000 farmers under the Plan for Family Agriculture. To achieve this goal the government purchases seed from 18 Salvadorian companies. This may be seen as a laudable gesture by the Salvadorian government. But that same government signed a free-trade agreement with the US in 2004. The combination of these two state actions shows us that when a state does something good it also finds itself doing the opposite. The free-trade agreement allows for the powerful American multinational biotechnological company Monsanto to enter the Salvadorian seed market. The agreement thus provides a means of blackmail for the American government. If Monsanto is not given preferential treatment in the Salvadorian domestic market then the US will withhold 200 million euro worth of financial support. In short, the US bought an ensured market share for Monsanto (and other American companies) for only 200 million euros, meaning the companies maintain their privilege. For more information click here [DUTCH].

[4] A number of parliamentary inquiries:

Parliamentary inquiry shipbuilding company Rijn-Schelde-Verolme (1983; 2,2 billion guilders).

Parliamentary inquiry construction subsidies (1986; monitoring and implementation of regulations has failed).

Parliamentary inquiry Implementation social insurance (1992; monitoring failed; no idea what executive bodies were doing).

Parliamentary inquiry construction fraud (2002; monitoring failed; there has been large-scale fraud, leading to price increases).

Parliamentary inquiry financial system (2010; major errors made during billion dollar bail-outs).

Parliamentary inquiry Fyra (2013; problems with high-speed rail system and trains that would use it; final committee report due in may 2015).

Parliamentary inquiry Housing Corporations (what went wrong and what did it cost?; final committee report due in fall 2014).

As part of the inquiry on housing corporations harsh words were spoken regarding a certain clumsy minister; more on that subject here [DUTCH]. It was also considered a neccesity by the minister in question to operate in secret; as was declared by ex-minister Donner in the Vestia case. Click here [DUTCH].

The Betuwe railway did not lead to a parliamentary inquiry. This is not to say it wasn’t needed. However a parliamentary study regarding infrastructure projects was undertaken (2003-2005); how did it happen that budget excesses we’re not reined in? Did the ministry ignore critical advise and was information withheld? Additional costs: several billion euro. About the parliamentary study, click here [DUTCH], about the necessity of a parliamentary inquiry , click here [DUTCH].

[5] More about the IT-debacle at the Ministry of Defense, click here. [DUTCH]