Freedom, Society, and State - Ludwig von Mises Institute

que s t ion w i I I permit us tog0 bey 0 n d t his rat her em p t Y
answer: which system, anarchism or minarchism, is more
I ikely to result in a more libertarian society?
Given, on the one hand, the libertarian propensity of
the common law and, on the other, the historical tendency
for states to expand, I think it likely that the
anarchist is more correct on this issue than the
minarchist.
b. The Courts.
Even granting that there can be law in the absence
of legislation, would it be possible for the common law
to operate in the absence of government. It. is to this
question that we now turn.
The first thing to be noted is that the anarchist
simply assumes that the legal order would exist within
a lib e r tar ian soc i e t y, i. e., a soc i e t yin wh i c h the use
of violence would tend to be justified only against
those who had ini t iated its use. Rothbard, for exampIe,
s tatest hat "t h e en t ire 1 i be r tar ian s ystem ineludes:
not only the abolition of the State, but also
the general adoption of a libertarian law code." It
"seems clear to me," he continues, "that if the majori
t Y 0 f the publie are not I i be r tar ians, the Stat e wi I I
not be abolished. "(35) And likewise, David
Friedman remarks that an lI a narcho-capitalist society
would be heavily biased toward freedom."(36)
It is important to recognize what is not being
claimed here. The anarchist is not assuming that
everyone would be libertarian, but that the environment
would be largely libertarian. Isn't this simply
que s t ion - beg gin g ? I s n 't he ass urn i n g precisely t hat
which is most in need of demonstration?
I do not think so. The popular view of law, derived
from the "mechanical" and power-grounded philosophies
of Jean Bodin, Thomas Hobbes, and John Austin,
views law as the command of the "sovere i gn" to the subjects.
But this exaggerates both the extent and the
effectiveness of power. Law, as the legal philosopher
Lon Fuller correctly notes, does not operate in a
social vacuum. Law is not so much "vertical·," i.e., a
command from the sovereign, as "horizontal," in that
any functioning legal order is dependent upon the
"existence of a relatively stable reciprocity of
expectat ions between law giver and subject..."(37)
Much the same thing has been noted by Friedrich Hayek:
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