Stuart K. Hayashi
Suppose you knew someone in childhood and, as an adult, became reacquainted with her. Imagine you suspect that, even as an adult, she is being regularly beaten by her spouse. Upon confronting her about this, she says, “This is something for my household alone; it is my private affair; it is none of your business!” Now consider another scenario. Imagine you learn that a young woman was raped by her own relative, and you have enough evidence to make you find it plausible that that relative may rape someone else. When the young woman learns of what you know, she screams that she will never forgive you if you go to the police or tell anyone else about this. She yells, “My relative didn’t rape you or anyone in your family. This is my private affair; it is none of your business! You have no right to go to the police about this.”
Are the women in the above two scenarios correct? The implication in the victim’s assertion is that because she is the one victim of which she is aware, she is the only party who has any right to take action against the aggressor. Because the aggressor did not initiate the use of force upon you or your family directly, says the victim, this is entirely her business and no one else’s. You and the government ought to butt out of this. Is she correct that this is nobody’s business but her own? No, she is not. Any use of violence, be it initiated or made in self-defense against the initiator, is necessarily everyone’s business. It is necessarily your business, and, to the degree that a constitutional liberal republican Night Watchman State has jurisdiction, it is necessarily the business of that government. The reason is that no use of violence, be it initiated or made in self-defense, can properly be privatized.
How Libertarians Propose Retaliatory Violence Can Be Privatized: Replace All Criminal Law With Civil Law
I did not always understand this. For many years I was beholden to an argument that Dr. W. Alan Burris leveled in his book A Liberty Primer. In this work, Burris argues the following. Imagine that Ralph steals $100 from Jake. If Jake does not merely file a civil suit against Ralph, but presses criminal charges as well, then the lawyer who prosecutes Ralph will not be an agent working exclusively on Jake’s behalf; the prosecutor will be representing the entire municipal government, the entire community, against Ralph. The implication is that Ralph’s victims are not limited to Jake; Ralph victimized the entire community.
Such a conclusion is wrongheaded and collectivist, W. Alan Burris says in A Liberty Primer. Dr. Burris “corrects” the record by telling us that, in reality, Jake remains Ralph’s sole victim. Therefore, concludes Dr. Burris, applying individualist principles requires that criminal law be abolished completely, replaced entirely by civil law. Dr. Burris continues that the reality is that Jake was the sole victim and therefore, if Ralph initiated the use of force against Jake, it is incumbent upon Jake to file a lawsuit against Ralph to make himself whole again. The same principle would apply if Ralph raped Jake. Again, Jake should seek justice by filing a civil suit against Ralph; not proclaim that when Ralph raped Jake, Ralph somehow victimized everyone in the community as opposed to Jake himself.
Libertarians who advocate that civil law replace criminal law completely even have thought of what should be done with respect to homicide. If there comes a day when Ralph kills Jake, Jake cannot sue Ralph from beyond the grave, right? Thus, suggest civil-law libertarians, Jake can specify in his will that should he be murdered, the executor to his estate will gain the power to file suit against the party the executor judges to be culpable for the death. Jake can specify in his will that if he is slain, his wife will gain the power to sue on his behalf. Should Jake’s widow be unable to carry out this task, then the responsibility will fall upon their eldest child. Anyhow, the point is their is an entire line of succession.
Beguiled for years by a charismatic Rothbardian, I actually agreed with this and came up with my own “What if?” scenario: What if Jake is a complete recluse and has no friends or family left? If he expires, what recourse would he have? Here is the “solution” I thought up: it is very unlikely that Jake would be the only recluse in his community; there would probably be others. Jake can hire a law firm specializing in estate law. They sign a contract stipulating that if Jake is murdered, the law firm will sue the culprit on his behalf. There will be many such law firms competing against one another. Insurance companies can also be involved. Jake can sign a contract stipulating that if he is murdered and the culprit is not sued successfully, the insurance company will have to pay insurance money to an organization of Jake’s choice. Because the insurance company does not want to pay out so much money, it would probably be cheaper for the insurance company to hire a lawyer to sue whomever killed Jake. Should the insurance company win the lawsuit, it will not have to provide the large stash of insurance money to the organization that Jake selected. If Jake is murdered, of course, he will not be around to observe whether the law firm or insurance company followed through with the contract.
How, then, would the law firm or insurance company be incentivized to carry out the arrangement? The “answer,” I rationalized, would be competition. There would be other recluses in the community observing what the law firm or insurance company did on Jake’s behalf. If the law firm or insurance company failed to carry out Jake’s wishes, similar recluses would take note of this failure and refuse to patronize that law firm or insurance company; they would take their business to a competitor. That, I rationalized to myself, demonstrated that civil law could indeed replace all criminal law. I was incorrect, and the correction came from an unlikely source: a man somewhat unfairly maligned as a symbol of tyrannical government and violence, an alleged enemy of liberalization.
Hank Rearden Refutes the Civil-Law Libertarians
The correction came from the ancient Greek lawgiver Draco. He was allegedly too harsh in punishing crime, and therefore a government acting too harshly is said to be draconian. However, Draco set a precedent that is actually important to having a truly free, constitutional liberal republican Night Watchman State. It turns out that prior to Draco’s time, the ancient Greeks largely agreed with W. Alan Burris that murder was a private matter. The ancient Greeks believed that if, say, Ralphius murdered your brother Jacius, it was not as if Ralphius had threatened the safety of the entire community; his lone victim was your brother Jacius. Therefore, if you wanted justice for Jacius, it was left to you and your family to seek out some personal vengeance against Ralphius. To this, Draco objected. Draco said that if Ralphius murdered Jacius, Ralphius necessarily victimized everyone in the community, and therefore the State, representing the entire community, was right to avenge the entire community against Ralphius.
This is true. If Ralph steals from Jake, then everyone else in the community has probable cause to fear that Ralph may steal from them as well. If Ralph rapes Jake, everyone else in the community has probable cause to fear that Ralph may rape them as well. And if Ralph murders Jake, everyone else in the community has probable cause to fear that Ralph may murder them as well. Even if Ralph publicly issues a serious threat of violence against Jake and has yet to carry it out, the rest of the public has probable cause for fearing that Ralph may carry out that threat against them as well. Therefore, any initiation of the use of force does, perforce, victimize everyone in the community.
Even in a constitutional liberal republican Night Watchman State, there might be some initiations of the use of force that might only be settled through civil suits. For example, presently in the United States, if someone breaches contract with you, you have no recourse but a civil suit. Yet, as John P. McCaskey explains, breach of contract is an indirect initiation of the use of force. Suppose you and I draft a contract stipulating that you shall pay me money and then I shall perform a service to you. You make a down payment, and then I refrain from providing the service at all. In effect, the force involved was your having been manipulated into the action of providing me your private property when I have not fulfilled my side; you relinquished your money, your private property, only under the condition that I fulfill my side of the agreement. Hence, breaches of contract are initiations of the use of force in the USA that presently are addressed mostly through civil cases and not criminal ones. In a purely rational constitutional liberal republican Night Watchman State, rational legal theorists may quibble over what sorts of infractions should merely be subject to civil suits and which should also be criminally prosecuted. Nonetheless, the principle remains: there are some initiations of the use of force that are so severe that, should Ralph commit them against Jake, Ralph demonstrates himself to be a threat against everyone else in the community, not merely Jake. On that understanding, when the constitutional liberal republican Night Watchman State claims to represent the entire community in criminally prosecuting Ralph for what Ralph did to Jake, the constitutional liberal republican Night Watchman State is not collectivistically usurping the authority to represent individual community members against their consent.
Hank Rearden got it right in his courtroom speech: “…when you violate the rights of one man, you have violated the rights of all…” Martin Luther King, Jr., also had the right idea when he said, “Injustice anywhere is a threat to justice everywhere.”
The initiation of the use of violence — by anyone against anyone — indeed demonstrates itself to be a threat to everyone in the community and not merely the most direct victim of that violence. If Ralph beats up Jake, there is sufficient evidence for you to worry that you could be the next victim of a beating from Ralph. And even if you, personally, believe that Ralph would never do this to you or your children, your next-door neighbor is reasonable in worrying that she might become his next punching bag. Violence cannot be privatized — any act of violence inexorably imposes repercussions for people other than the violence’s most direct victim.
If Ralph beats up Jake, the threat that Ralph poses to the rest of the community is what economists should identify as an “externality” — Ralph brutalizing Jake invariably imposes a cost on people in the community other than Jake. This is an externality that cannot be “internalized” by merely allowing Jake to sue Ralph. The ramifications of every act of violence are unavoidably “collectivized” or “socialized.” Ralph imposed a cost on everyone in the community, and the closest we can come to transferring that cost back to Ralph — to “internalizing” the cost that this externality imposed — is to have a constitutional liberal republican institution, the Night Watchman State, act as an agent of the community in general in responding to Ralph. This principle also has implications for self-defense and for ascertaining who is or is not deserving of what is believed to be “retaliatory force.”
If Ralph bruises his wife, he might rough up other people as well. Therefore, if you learn of this abuse, it is necessarily your business and the business of everyone else in the community. You are right to take action even in defiance of the wife’s protests. Contrary to her assertions, she is not the exclusive victim. The same applies if you learn a young woman was raped by a relative. Even if she sternly pronounces she is the solo victim and therefore it is not your place to intervene, that is not accurate. It is your business and everyone else’s.
The only sorts of instances when people truly can consent to being acted violently upon are sporting events and rough sexual acts. Two men and their agents can all mutually sign contracts affirming that the two men consent to getting into a boxing ring and bashing one another for the audience’s amusement. Likewise, two or more people might consent to rough S&M. Note that, due to the riskiness of such actions, it is legitimate for there to be some government oversight when people allegedly explicitly consent to the risk of becoming objects of physical harm. It is legitimate for the government to investigate the contractual capacity of a man who says he consents to entering a boxing match. Likewise, it is incumbent upon participants in BDSM to agree upon safe words ahead of time and to take precautions to ensure that no one is physically harmed beyond what he or she reasonably expected.
Is a Constitutional Liberal Republican Night-Watchman-State Initiating the Use of Force Against Private Vigilantes?
We say that it is evil to initiate the use of force, but that there is moral justification for retaliatory force against the party that initiated the use of force. That is correct, but this principle is widely misunderstood by too many libertarians, particularly those who proclaim that it would be evil for a “monopolistic” constitutional liberal republican Night Watchman State to “monopolize” the issuance of such force.
Imagine that a gang called the Lombards mugs me and give me black-and-blues. Subsequent to some healing, I round up a group of friends and, without telling our constitutional liberal republican Night Watchman State, my friends and I seek out the Lombards to return the favor. That would be justice, correct? It would simply be issuing retaliatory force against the Lombards, correct? Therefore, say many libertarians such as Murray N. Rothbard, we should consider how wrong it would be when, as my friends and I seek out the Lombards for vengeance, the constitutional liberal republican Night Watchman State sends out police to arrest my friends and me. The constitutional liberal republican Night Watchman State would arrest us on the grounds that we are petty vigilantes. This is wrong, cry Rothbard and his followers. My friends and I were not initiating the use of force, but merely intended to issue retaliatory force. Therefore, goes the Rothbardian conclusion, when the constitutional liberal republican Night Watchman State arrests my friends and me, it is the State initiating the use of force against my friends and me, and for the purpose of maintaining its MONOPOLY on violence, to boot!
Here is what the Rothbardian argument overlooks: in the long term, there can be no morally justified issues of retaliatory force unless the widespread adherence to Due Process takes priority. Moreover, adherence to Due Process is inherently “monopolistic.” I will explain what I mean by that.
In most instances where a private citizen initiates the use of force against someone, this is done in secret. If Ralph murders Jake, he will probably not do this out in the open — he will do this someplace hidden and then dispose of the body in such a way that it will not be obvious that Ralph committed the misdeed. The same goes for rapes. If Ralph rapes Jake, this will probably be out of view of most people. The same applies to most forms of theft committed by private citizens. Therefore, when a private citizen is accused of initiating the use of force against yet another citizen, it is seldom obvious that the accusation is true. And that is the snag that bedevils all vigilante gangs that, in commissions of violence, claim to be issuing what is merely retaliatory force against the party that initiated the use of force.
Suppose that a man named Cletus catches his daughter, Emma, having sex with a low-status man, Alfonzo, who is of a racial minority. Cletus is horrified, and then Emma immediately tells Cletus that she was not consenting; she insists to her father that Alfonzo was raping her. Alfonzo professes on his innocence, shouting to Cletus that Emma gave affirmative consent. Cletus immediately believes Emma over Alfonzo. Cletus gets together his neighbors and they corner Alfonzo, breaking everyone bone in his body.
Here, a Rothbardian might rationalize the following: if it turns out that Emma was lying, and that Alfonzo was telling the truth, then what Cletus and the mob did to Alfonzo was wrong. Cletus and the mob initiated the use of force against a wrongfully accused man. However, continues the Rothbardian rationalization, if it later turns out that Alfonzo really had raped Emma, then what Cletus and the mob did was OK, however reckless they were in rushing to judgment. Because it turned out that Alfonzo had initiated the use of force against Emma after all, what Cletus and the mob did to Alfonzo was merely issuing retaliatory force, which renders the actions of Cletus and the mob justified.
Is that reasoning correct? No, it is not.
In rushing to judgment — carrying out the full brunt of violence so quickly in the absence of evidence, Cletus and the mob were acting so recklessly that they gave everyone a probable cause to ascertain that Cletus and the mob are a violent threat to everyone. It is wrong to conclude, so simply, that the violence that Cletus and his neighbors issued was justified if it later turned out that Emma’s rape accusation was true. There are cases of people being falsely accused of all sorts of initiations of the use of force. There were many cases of black men being falsely accused of initiations of the use of force in the South during the Jim Crow era, and they were lynched by vigilante mobs — by private parties acting independently of, or in “competition” against, the “monopolistic” federal government.
Should it be the case that Alfonzo was falsely accused, it is obvious that Cletus and the mob initiated the use of force against him. However, if it turned out subsequently that Alfonzo did rape Emma, that would not let Cletus and his neighbors off the hook. Because they got away with behaving so recklessly this time, there is nothing that would discourage them from behaving at least as recklessly once someone else in the community makes a similar accusation — more likely, this angry mob will feel emboldened. Every time Cletus and his neighbors exact what they judge to be “private” vigilante justice — retaliatory force in the absence of Due Process — it ratchets up the likelihood of Cletus and his neighbors violently injuring a falsely accused person on the subsequent occasion.
Issuing supposedly retaliatory violence, in the absence of Due Process, is so reckless a violent threat that, regardless of the status of the accused, it poses a violent threat to everyone. You have probable cause to believe that if a private party exacts “private” retaliatory force with impunity, absent Due Process, you are at risk of being that private party’s next target. Therefore, for private parties to issue ostensively “retaliatory” force, absent of Due Process, against someone accused of initiating the use of force, is itself an initiation of the use of force. This, too, violently imposes a cost on everyone; it is a violently imposed cost on society that is “collectivized” or “socialized.” That principle applies regardless of whether the object of the private vigilante gang’s wrath was in fact guilty of the infraction for which he was initially accused.
Moreover, if Emma lied about being raped, she would be an accessory to Cletus’s initiation of the use of force against Alfonzo. If you go around seriously accusing someone of having initiated the use of force against you, you create the great likelihood that someone — either private acquaintances or the government — will threaten violence upon the accused. Hence, falsely accusing someone of initiating the use of force is not free speech but itself an initiation of the use of force.
It is a fact that when someone is accused of initiating the use of force, it is seldom obvious whether he was guilty of doing what he was accused of doing. This fact is what renders the principle of legal Due Process to be all-important. Due Process is the single most significant safeguard against the implementation of the most brutally violent punishment of people who are falsely accused. Due Process is thus essential to minimizing and preventing the initiation of the use of force. If you are to stop or minimize the initiation of the use of force, you must prioritize Due Process over any imaginary right to “compete” with the constitutional liberal republican Night Watchman State in the “industry” of issuing “retaliatory” force.
Killing an Assailant in the Middle of His Attack Does Not Bypass Due Process
If you are being immediately assaulted, you have every right to defend yourself violently; you need not wait for the police or any judges; you should simply act as soon as possible. Doing so, though, is not acting absent of Due Process in a constitutional liberal republican Night Watchman State. Should you kill an assailant, Due Process requires that the police at least question you about it afterward. If their investigation leads them to suspect that perhaps your violent act was not in self-defense, they might gather the evidence and have you tell your story on the witness stand. Thus, immediate acts of self-defense, where you kill an assailant, remain subject to Due Process rules in a constitutional liberal republican Night Watchman State.
The same principle applies if you intervene during an assault. If you catch Alfonzo holding a knife to Emma’s throat and forcing himself upon her, you need not wait for police; you would be justified in attacking Alfonzo immediately. Once again, that would not be bypassing Due Process — the police of a constitutional liberal republican Night Watchman State would question you afterward.
The immediacy of the threat justifies that you act before any explaining can be done to police or a judge. The same cannot be said of any supposedly “retaliatory” violence that takes place after the fact — that is, any supposedly “retaliatory” violence that takes place hours or days after the initial initiation of the use of force had already commenced and ended. If Emma tells Cletus on Monday that Alfonzo raped her hours ago, and then Cletus and his neighbors hunt after Alfonzo on Tuesday, that is issuing vigilante violence after the fact. These vigilantes would not have the excuse that there was still an emergency that justified that they act immediately, independent of police or judges.
Initiations of the Use of Force Cannot Be Minimized in the Absence of Due Process
I will go briefly over what happens during Due Process. Due Process requires that before police can issue the full brunt of violent punishment upon an accused person, the police must prove beyond a shadow of a doubt that the accused truly did initiate the use of force as accused. In the process, the police must conduct an investigation. There is potential for abuse in any investigation, and that is why the courts exist as a check against police and overzealous prosecutors. Before the police can search anything related to someone suspected of initiating the use of force, the police must first obtain a warrant. They obtain this warrant by presenting sufficient evidence to a judge that there is probable cause to discern that the accused might be guilty. Should the police fail to present enough evidence, the judge can deny the warrant and thwart the police’s efforts. It is true that if the police obtain a warrant to search my home, when I have been falsely suspected of initiating the use of force, the police do impose some threat of violence upon me, an innocent man. If they get a warrant to search my home and I violently defend my home against their intrusion, they become authorized to increase the violence against me. Still, there is no way around this; nongovernmental parties have done no better.
Once the police gather enough evidence to make them confident that they can win a conviction, they make an arrest, and Due Process continues to apply. The police often must read Miranda rights when apprehending the suspect; the suspect is to get a phone call and, if he cannot afford his own counsel, it is provided to him by the State itself. The police must then unload all their evidence before a judge and jury. Should the judge and jury discern that the police and prosecution have failed to prove, beyond any shadow of a doubt, that the accused did indeed commit the initiation of the use of force, the judge or jury can override and veto the police and prosecution by refusing to acquit.
Although the police and prosecution do impose some threat of force as they conduct the investigation and then apprehend the suspect, as well as in subpoenaing witnesses, the Due Process procedures nevertheless place a sequence of procedural roadblocks to prevent the police and prosecution from implementing the full brunt of force that a vigilante gang would; they cannot unload brutally violent penalization right away as a vigilante gang would. Despite the imperfections of how a constitutional liberal republican Night Watchman State allows for police to investigate, the Due Process is a great improvement over what lynch mobs and other vigilante parties have done. Due Process is therefore integral to protecting people from the severest initiations of the use of force from private parties. Absent of the Due Process, people would frequently be falsely accused of initiating the use of force and then be “punished” with extreme violence. That would maximize the initiations of the use of force.
It is true that sometimes not even Due Process being followed consistently has been enough to forestall all wrongful convictions. Someone being wrongfully convicted is an initiation of the use of force against the wrongfully convicted. There are therefore two notes to make about this. First, this is a good reason why there should be a moratorium on scheduled executions. If someone is wrongfully convicted and sentenced to life in prison, only for him to be exonerated 20 years later, that is horrifying and tragic, but at least the wrongfully imprisoned convict can be released. By contrast, if someone is executed and later shown to be innocent, there is nothing that can be done to repair that. Secondly, more-liberal republics have behaved worse than private vigilantes no more than the degree to which those more-liberal republics have veered away from strict adherence to the principles of a constitutional liberal republican Night Watchman State. To the degree that a government has adhered to the principles of a constitutional liberal republican Night Watchman State, it has behaved no worse than have private vigilante mobs.
I have previously argued that it is possible for a government to deny freedom consistently to citizens even as it upholds Due Process. I stand by that argument. Still, it is also the case that, in the long term, freedom cannot survive in the absence of Due Process. That is: Due Process can be maintained even when freedom is eliminated, but freedom cannot be maintained if Due Process is eliminated.
Minimizing Initiations of the Use of Force Requires That Information on the Context Behind All Acts of Violence Be Accessible to the Entire Literate Public
Constitutional liberal republican Night Watchman States also institute another safeguard in Due Process: the public accessibility of information on cases dealing with violence. Note that criminal trials are public information. Should Ralph be accused of something terribly embarrassing that stigmatizes him — such as him being accused of rape — the constitutional liberal republican Night Watchman State is to make all information on the case available to the public. Some might say that such information being publicly available is cruel because it will publicly shame Ralph and stigmatize him. In reality, the information being publicly available is for the protection of everyone in the community, including Ralph himself.
Suppose I see Eli and Wilson getting into a public altercation. I did not witness the start of the battle, but I am seeing what is probably the end of it. Eli is winning the battle, beating Wilson to a pulp. I immediately conclude that Wilson is the innocent victim of Eli, and I go and beat up Eli. Eli protests that actually he was minding his own business when Wilson came at him with a knife. Eli insists that I came upon them soon after Eli disarmed Wilson and simply continued beating up Wilson to ensure that Wilson would not be strong enough to renew his attack. Wilson insists that Eli is lying — it was Wilson who was being peaceful when Eli sprang upon him. As I beat up Eli, another passerby — George — sees us. George instantly concludes that Eli is an innocent victim whom I took the initiative to launch an attack on, and therefore George rushes to Eli’s rescue and pummels me. Then another passerby catches sight of us and rushes in. This can go on and on.
When witnessing a violent dispute between two parties, people can immediately pick a side and join the violence. When someone picks a side, he believes he is fighting on behalf of the aggrieved party against the aggressor who initiated the assault. Most likely, though, he is recklessly acting on insufficient knowledge and endangering everyone violently just as Cletus and his pals did in the prior scenario.
Therefore, people need to have a single place in their municipality where all the germane information about the dispute between Eli and Wilson can be accessed, and where impartial investigators can ascertain who initiated the use of force. That is why it is important to have Eli and Wilson go to court and each explain their respective cases and present their own evidence. Consistent with the principles of a constitutional liberal republican Night Watchman State, everyone in the community is to know that if they want to learn who was the aggressor and who was the victim in the Wilson-Eli confrontation, they can retrieve it from the same source: the courthouse.
If you have been threatened with violence, or if it has already been inflicted upon you, you may be justified in fearing that if you come forward to authorities with this information, that it might put you at risk of being subjected to violent reprisals from the assailant. For that reason, in the short term it may be rational that you tell but a few people about this circumstance and ask them to keep it secret in the foreseeable future. However, that can only go so far. There is probable cause for the law to inquire as to whether this alleged assailant may pose a violent threat to parties besides you and therefore, in the long run, the protection of every peaceful person’s rights requires that this information ultimately be publicly available. On that basis, a right to privacy does not extend to any credible accusation that you can level about someone either threatening violence or having committed it.
Upon objective examination, impartial investigators — the judge and jury — should also ascertain what is the proper punishment for the party that initiated the violence. If not for impartial investigators conducting an objective examination, private vigilantes will easily become overzealous in deciding what is the righteous punishment. For instance, if someone accidentally dings my car, I might decide it is morally justified retaliation to chop off all that person’s fingers. Part of having cases held before the public, and having public representatives — a jury and judge — deciding on the proper punishment, is to practice the constitutional liberal republican Night Watchman State principle of stopping mindless violence, meting out no more violent punishment than what properly befits the proven charges.
Returning to the risk of wrongful convictions, the information from criminal trials being publicly available is another Due-Process guard against that. You can follow a public trial on your own accord. If you ascertain that there was anything amiss in the procedure that led to the conviction — that the evidence was insufficient or tainted — you can go through republican channels to help the convict receive another trial or to have the case reopened. If we are to stop two factions — one siding with Eli and the other siding with Wilson — from entering into a tit-for-tat sequence of violent reprisals against one another, each side believing it is fighting for the one who started as an innocent victim, then information on who initiated the use of force against whom must be publicly available. Likewise, in order to guard against an innocent person receiving the full brunt of violence as punishment for an infraction for which he was wrongfully convicted, the details of his trial must be public. Those two considerations are further evidence that violence cannot be privatized Once again: violence, even in self-defense, is inevitably a public matter and is everyone’s rightful business to know about.
Vigilante violence is justified only to the degree that the government is too corrupt to follow Due Process anyway. If you live in a kleptocracy such as Zimbabwe under Robert Mugabe, and your property is stolen, it is unrealistic to expect the police to catch the culprits. They will only do anything for you if you bribe them first. Only when the system is so corrupt that vigilante action cannot be more dangerous than the illiberal government itself, can vigilante action be justified. By contrast, the degree to which a government is a constitutional liberal republican Night Watchman State is the degree to which it has eliminated corruption. Insofar as you live under a Night Watchman State that consistently practices constitutional liberal republicanism, vigilante action cannot be justified.
A State’s Ability to Minimize Initiations of the Use of Force on Its Own Territory Is Weakened to the Degree That It Tolerates Neighboring States’ Disregard for Due Process
Also notice that whenever people in a region feel aggrieved and demand “retaliatory force” against aggressors, justice can be served in that region no more than the degree to which the parties issuing retaliatory violence adhere to the principles of Due Process. Consider two U.S. states adjacent to one another — say, Utah and Colorado. Imagine that Utah strictly adheres to Due Process while Colorado lets private vigilante mobs issue what they capriciously deem to be retaliatory justice. Also imagine that there are many homes along the border separating Utah from Colorado. If vigilantes run rampant in Colorado, then there will eventually develop a long-running feud where, as in the case of the Wilson-Eli example, two factions go to war, committing reprisals against one another, each side believing to have aligned itself with the initial victim. (Note that this was the mentality behind many long-running mutual grudges, animosities, and wars between rival American Indian tribes, such as the Pequot versus the Narragansett.) There will come a day when these mutual reprisals reach the homes along the Utah-Colorado border, and then Utahns will be affected. Therefore, if Utah practices Due Process whereas Colorado ignores it, it is not the case that Utahns can merrily enjoy their own freedom while remaining oblivious to the violent chaos in Colorado. If your society is a constitutional liberal republican Night Watchman State that practices Due Process, whereas states adjacent to yours avoid Due Process, it is the case that those neighboring states’ avoidance of Due Process will cause a spillover; there will be initiations of the use of force that originate in the neighboring states and encroach upon your own state.
That is why, the more ubiquitous a constitutional liberal republican Night Watchman State’s Due Process rules become, the safer everyone becomes. If Colorado becomes a constitutional liberal republican Night Watchman State that consistently enforces Due Process, that does not merely render Colorado safer; it commensurately renders Utah safer as well. It is therefore in Utah’s interest for Colorado to be a constitutional liberal republican Night Watchman State that adheres to Due Process. For a more real-world example, consider the U.S.-Mexican border. Many of the genuine problems that exist along the border are wrongfully blamed on immigration per se or on Mexicans speaking a different language and peaceably practicing customs not so familiar to native-born U.S. citizens. To the degree that there is real violence along the border, it is a consequence — sometimes direct, sometimes indirect — of Mexico’s failures at being a constitutional liberal republican Night Watchman States that maintains Due Process. This is not to say that the United States has some duty to annex Mexico to itself and impose its own liberalization on Mexico. This is to say, though, that the degree to which Mexico becomes a constitutional liberal republican Night Watchman State, enforcing Due Process, not merely benefits Mexicans but likewise benefits the United States. Moreover, although the USA’s influence over Mexico is no more than indirect, the fact that the USA is more politically and militarily powerful than Mexico does allow for the USA to exert some indirect influence over Mexico’s policies. Although Mexico is nowhere near as constitutionally liberal republican as the USA would prefer, Mexico would probably be liberalizing at a slower rate than it is presently, were it not for the example that the USA sets for it.
All Violence, Even in Self-Defense, As Inherently Monopolistic
This indicates how the wielding of violence is inherently “monopolistic.” When one violence-issuing agency possesses firepower superior to those of other violence-issuing agencies around it, that one most powerful violence-issuing agency is able to influence the policies of those other violence-issuing agencies, be it directly or indirectly. The most direct form of influence is annexation, wherein the metropole conquers the other violence-wielding agency wholly and annexes that other violence-wielding agency to the empire controlled by the metropole. An example would be Great Britain conquering India. If the dominant violence-wielding agency does not annex the other agencies directly, it can still influence the other agencies, indirectly, to change their policies by reminding them that the dominant agency could defeat the other agencies in battle if they refuse to comply with the dominant agency’s wishes. An example of that would be how a particularly powerful Islamic theocracy can influence nearby Muslim-majority countries even if it does not rule them directly.
Sometimes even when two adjoining nation-state seem diametrically opposed in governing philosophy, the stronger nation-state can influence the actions of the weaker. For example, South Korea is a more-liberal, more-capitalistic republic. By contrast, North Korea might be the most consistently communist nation-state on the planet. It would therefore initially seem that South Korea exerts zero influence over the North. Still, South Korea is able to exert influence in one respect: its superior firepower has been able to hold North Korea at bay. If not for South Korea’s superior firepower, or the fact that U.S. troops are stationed near the border, the dictator of North Korea could expand his own reach, pushing his borders out and overtaking the rest of Asia. South Korea and the United States still influence North Korea subtly in that they keep North Korea’s dominion relatively contained. The dictator of North Korea wants more of a regional monopoly on power, but this is challenged by the greater monopolistic power of South Korea and the USA.
Here is a more basic example of how violence is inherently monopoly-seeking. Suppose a man named Barnie is trying to beat me up for no reason. Clearly he is monopolistically imposing his own will upon me. However, if I fight back in self-defense, or call the police to defend me, I am also being monopolistic. By acting in defense of my own rights to be carry on peaceably, I am monopolistically, violently imposing my own constitutional liberal republican Night Watchman State principles upon Barnie. If you are advocating the principles of a liberal republican Night Watchman State, there is one respect in which you are in a zero-sum competition against everyone who holds a differing interpretation of what constitutes a just model of society. You are in disagreement with all rival interpreters of what constitutes a justified use of violence and what constitutes an initiation of the use of force. Thus, if you get your way, then the opponents of the constitutional-liberal-republican Night-Watchman-State philosophy cannot have their way — and, vice versa, you cannot have their way if the opponents of the Night Watchman State philosophy have their way.
If Bernie Sanders influences what happens in your government, he monopolistically imposes his interpretation upon you — you have to live under his rules, which will be violently enforced. By contrast, if you get to institute a constitutional liberal republican Night Watchman State, you will be in the right, but your principles will still be violently — monopolistically — enforced on socialists who insist that there is no right to private property and no one can be said to have rightfully earned a billion dollars’ worth of assets. If socialists say they are going to take what is rightfully theirs by violently raiding your mansion, what you call self-defense will still be considered by those socialists to be a violent, monopolistic imposition of your philosophy upon them.
Just as it is said that nature abhors a vacuum, all violence — even in what I judge to be rightful self-defense — is necessarily a monopolistic assertion of the will of the person using the violence, the will being monopolistically asserted upon the object of that violence.
Furthermore, for argument’s sake, we might imagine the following: suppose, in a constitutional liberal republican Night Watchman State, a private party decides to conduct its own investigation on whether another party initiated the use of force. However, this private investigating party scrupulously decides to avoid being a vigilante mob rushing to judgment. This private investigative party adheres to all the necessary rules of Due Process. Should this private investigative party conduct itself in this manner, it ceases to be a private party acting in competition against the constitutional liberal republican Night Watchman State, as it is necessarily playing by that (monopolistic) constitutional liberal republican Night Watchman State’s rules. Therefore, the degree to which that private investigative party acts in accordance with the principles of the constitutional liberal republican Night Watchman State is the degree to which that investigative party ceases to be “private” and instead becomes a mere agent of that constitutional liberal republican Night Watchman State. Hence the constitutional liberal republican Night Watchman State maintains its monopolistic authority over interpretation of what constitutes proper criminal justice procedures in the region.
Competing Justice Systems?
Now, there are apologists for the notion that all government — including that of a constitutional liberal republican Night Watchman State — should be replaced by a system of competing, private protection agencies. When I bring up the issue of Due Process, there are two factions among the competing-protection-agencies apologists. One camp answers that it is not necessary to have Due Process be ubiquitous throughout all such agencies. The other camp answers that all such agencies will follow Due Process but they will not converge into any sort of monopolistic hegemony. I will address the former camp first.
The first camp is represented by David D. Friedman (son of Milton Friedman) in The Machinery of Freedom. David Friedman says that a major selling point of the competing-protection-agency system is that you will be able to shop for a wide variety of different types of legal systems. You could pledge yourself and your children to live by the rules of a socialist protection agency. You could sign up yourself and your kids to a religious fundamentalist protection agency, whereby you contractually agree that if you or your kids are caught masturbating, you contractually consent to the perpetrator receiving some violent punishment. You could sign up yourself and your 14-year-old daughter to a protection agency that says that you contractually agree that if your 14-year-old daughter is caught receiving an abortion, the protection agency will come down hard on both your daughter and whomever is administering the abortion.
David D. Friedman argues that product differentiation and service differentiation are forms of competition. I will give an example of this in my own phrasing (this is my analogy; not David Friedman’s): cola is a distinct flavor. If you do not like the flavor of orange juice, you can purchase a beverage with the flavor of cola. By the same token, different protection agencies would compete by offering different sets of rules — rules which you contractually agree you can be violently punished over if you break them. David D. Friedman is indeed correct that differentiation in features among products is a form of competition. If we follow that logic, though, that means that the more alike the different brands become to one another in the same industry, the less competitive they become. If all fossil fuels become fungible regardless of the brand selling them, that makes them less competitive. Therefore, the more alike the competing brands become — the more they converge in having all the same features — the more they become a cartel. That is, they become more like a monopoly or, in the case of agencies that sell “protection,” the more they act as a single cartel-lish hegemony.
That is where the difficulties begin. David D. Friedman argues that there are two major selling points to what he proposes:
- Having competing private defense agencies will maximize consumer satisfaction by tailoring their sets of laws to what individual consumers want. This could result in many different types of justice systems.
- This will reduce the initiations of the use of force against everyone.
David D. Friedman fails to observe that 1 and 2 contradict one another. If the head of a household can contractually pledge that his own children can be violently punished by the agency hired if those children break the agency’s rules, then the rights of children will be violated by any agency that does not adhere to the standards of a constitutional liberal republican Night Watchman State. Suppose Mack contractually agrees that the private protection agency he chose may violently punish Mack’s 10-year-old son, Zane, if Zane is caught masturbating. Then Zane is caught masturbating. Therefore, the protection agency issues corporal punishment upon Zane. Thus, selling point 2 is violated — allowing for people to sign up their children for justice systems other than a constitutional liberal republican Night Watchman State one will result in initiations of the use of force being applied to children.
By contrast, imagine what would happen if all the competing private defense agencies ended up adopting the standards of the constitutional liberal republican Night Watchman State, including Due Process. They would cease to come in so many different “flavors.” By becoming more alike, they would become more of a cartel, more of a monopoly. And having a monopoly was what the apologists of competing private protection agencies were trying to avoid from the outset.
They also presume that all the different agencies would be roughly equal in terms of their firepower and influence. As we noted earlier, some governments are more powerful than others, and a particularly powerful government can end up influencing other governments’ policies. In the nineteenth century, such a tiny metropole as England was able to influence the policies in Scotland, Wales, Ireland, India, Hong Kong, Singapore, and vast regions throughout Africa. England’s influence was so vast that it was said that “the sun never sets on the British Empire.” Centuries earlier, the metropole of Mongolia influenced the laws in China, Russia, Afghanistan, India, Pakistan, and even Austria. Prior to the end of World War Two, the metropole that was Japan influenced the policies in Burma, China, Indonesia, and the Philippines.
There is no reason to believe that this situation would change under supposedly “competing” private defense agencies. If private protection agency A can overwhelm B, C, and D, it can influence them two ways. A can overthrow their managers and annex their clients outright. However, if all four of these agencies fear open conflict, it does not follow that B, C, and D have escaped A’s influence: A can remind them that B, C, and D would likely lose in open conflict with A, and therefore it is best that B, C, and D adopt some policies A wants them to adopt. Should that happen, A will still be exerting monopolistic, hegemonic influence over the other agencies — what was supposed to be avoided.
Conversely, if B, C, and D join forces and vanquish A, it will be the case that insofar as B, C, and D act in concert, they themselves are joining together to act as a single hegemonic cartel. Competition between two agencies that issue violence should not be thought of as being a baseball game where both teams play by the same rules. Rather, it will be the case that the team with the most points after the first four innings will have the opportunity to rewrite the rules for both teams and even force the losing team to play by a different set of rules.
Now suppose that there are people subscribed both to agencies A and B who live in the same geographic region. Also suppose that A proclaims itself to govern under constitutional liberal republican Night Watchman State principles whereas B allows parents living under its system to molest their own children. In such a case, what the pro-competing-agencies’ advocates have touted as Selling Point 2 — that the protection of individual rights against force will be maximized — will fail to materialize. Note that not even the people living under agency A will have maximum protection against the threat of the initiation of the use of force, and this is for the same reason that not even the freer Utahns were maximally safe under my prior scenario about Utah and Colorado. In this case, because people under both agencies A and B dwell near one another, the illiberalism of B will spill over into the lives of people dwelling under A, imposing the initiation of the use of force onto the people trying to get by under A. People under A would gain maximum freedom if A pressures B into being more of constitutional liberal republican Night Watchman State — but then A would be acting as a monopolistic hegemony, and that is the condition that the competing-agencies partisans wanted abolished.
Now, let us return to the topic of children’s rights. Suppose the Parsons family subscribes to Protection Service A, which does not recognize 8-year-olds to be contractually competent to consent to sex with fully grown adults. Conversely, Protection Service B does believe that 8-year-olds hold the contractual capacity to engage in sex with adults. The 8-year-old daughter of Mr. and Mrs. Parsons runs away to live with a 40-year-old lover subscribed to Protection Service B. Mr. and Mrs. Parsons demand that Protection Service A retrieve their daughter from the clutches of her adult lover. In turn, the adult lover asks Protection Service B to stop Service A from forcibly seizing his 8-year-old lover. After all, since Service B considers the 8-year-old to be living with and having sex with the 40-year-old man on her own free will, it follows that B should interpret A’s forcible retrieval of the 8-year-old as A’s attempt to abduct the 8-year-old.
David D. Friedman assures readers that should such a disagreement emerge between two protection agencies, no violent skirmish will result. There will be no violent skirmish, say David Friedman and Murray N. Rothbard, because both agencies realize that, upon a cost-benefit analysis, they will lose more money and lives by fighting for their beliefs rather than trying to work out some compromise. Ergo, conclude Rothbard and David Friedman, they will work out some compromise; a violent skirmish is precluded. That is false reasoning, as Sir Norman Angell shows us.
In the years leading up to the First World War, Sir Norman Angell penned his book The Great Illusion. This work argued that, on a cost-benefit analysis, if Germany fights a war against Great Britain, Germany will incur a net loss from the conflict even if Germany wins the war. Critics therefore assumed that Sir Norman was saying that it was impossible that an Anglo-German war would erupt; they said that the war breaking out refuted Sir Norman. But Sir Norman did not say what critics assumed he did. He did not say that the cost-benefit analysis precludes Germany from warring against Great Britain. What he said was that if Germany did war against Great Britain, Germany would incur a net loss from the war even if it won. That is an important distinction. Just because many people consider it obvious that A will incur a net loss if it engages in a skirmish against B, it does not follow that this consideration precludes A from engaging in said skirmish.
Suppose, for argument’s sake, though, that Protection Services A and B both decide not to defend their respective principles relentlessly; instead they try to negotiate. The clientele on each side will be disappointed. Mr. and Mrs. Parsons ascertain that their daughter, not being contractually competent, is being violated by sex with the 40-year-old adult, and their daughter has an absolute right not to succumb to statutory rape. Conversely, the 40-year-old and the little girl believe they have an absolute right to their sexual activity. If Protection Services A and B negotiate some compromise, both services will fail to uphold the principles they promised to uphold.
The problem is not solved if both protection services agree to take the case to a private arbitrator who will wholly rule in favor of one side over the other. Both disputing parties will say, “What is there to hash over? We already know the facts of the situation; the only disagreement is over the principle of whether it is right to allow a 40-year-old to have sex with an 8-year-old. Our side already knows it is morally right. Thus, this can only be settled through force, and the one satisfactory solution is for our side to emerge wholly victorious in the violent conflict, the other side granting an unconditional surrender.”
The Conflict of Interest for a Private Protection Agency
This brings to light the flaw in the other rejoinder I receive: that I should be OK with competing private violence agencies because they will become nearly uniform in upholding Due Process and avoiding skirmishes against one another. Never mind that their becoming so alike will reduce their competitiveness and make them more like a cartel and therefore the monopoly that was supposed to have been precluded. The complication arrives when apologists for this system proclaim that both of the following outcomes will be reached:
- Every private, for-profit firm recognizes that the customer is always right. Therefore, each private protection agency will seek to accommodate the tastes of its clients as much as possible, catering to what they want. A private protection agency will loyally protect its clients more fiercely than any constitutional liberal republican Night Watchman State would, since that Night Watchman State would be a complacent and sluggish monopoly not driven by the utmost market-based incentives.
- Initiations of the use of force will be minimized; defenses of individual rights will be maximized.
Any private protection agency that aspires to fulfill both outcomes will ultimately find itself in a conflict of interest. There will come a day when the firm will gain a client who has indeed initiated the use of force. That client will not ask that his own protection agency punish him, but that the protection agency shield him from any punishment.
Here is a basic example. I am subscribed to Protection Agency A. Wayne is subscribed to Protection Agency B. I burglarize Wayne’s home; I take his television set, computer, paintings, and other valuables. I readily admit to Protection Agency A that I engaged in this theft. Now, because I have already paid Protection Agency A with good money (money I had stolen from previous victims), I expect Protection Agency A to protect me when Protection Agency B seeks to retrieve for Wayne his stolen property.
Here, again, the apologists assure us that there will be no violent skirmish between Protection Agencies A and B. Instead, they will try to negotiate some deal. I tell Protection Service A, “That is not what I am paying you for. There is no need for some fact-finding mission. I admit to everyone that I took Wayne’s property. You agreed to defend me against force. I expect that from you. Do your job.”
If Protection Agency A is offended by my demand and extradites me to Protection Service B, that will fulfill Agency A’s mission of upholding everyone’s rights, but it will renege on Protection Service A‘s promise to maximize consumer satisfaction.
The apologists for the competing-protection-agency system will reply that for the maximization of individual rights protection to be achieved, it is not the case that any of the protection agencies must explicitly promise to uphold everyone’s individual rights. The competing-agency proponents reply that each protection agency will only be loyal to its own clientele, and when each agency cares only about its own clientele, the inadvertent result will be that individual rights protection will be maximized. They liken this to how, if both buyers and sellers each look out for their own interest and not the others’, this will still result in a compromise on price where the fairest price is reached. Likewise, one might say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general.
The apologists’ argument fails to acknowledge what is absolute and what is not. Vendors want to charge the highest possible price, and consumers want to pay the lowest possible price. They end up compromising somewhere in the middle on price, but that compromise does not violate anyone’s principles or show any leniency to the initiation of the use of force. By contrast, if both Protection Agencies A and B are both aware that I initiated the use of force upon Wayne, and yet they both still haggle over how I can make this up to Wayne, then the implication is that Wayne’s individual rights are subject to compromise. But individual rights are absolute, rendering them nonnegotiable; to compromise them is to violate them utterly. If your Protection Agency is willing to compromise what you believe to be your rights, then your Protection Agency does not believe that those are your rights.
Defenders of the competing-agencies system might also say that republicans expect the maximization of individual rights protection to emerge in courts when both the prosecution and defense care only about itself and not about justice in general. They can say, “Both prosecution and defense only care about winning, and yet the republic expects that justice will emerge as a result of each side only caring about its own victory. How is that worse than expecting justice to emerge as a result of Protection Services A and B prioritizing its own victory above any common interpretation of what is objectively just?”
Yet it is not true that in the court system, the prosecution unconditionally seeks a conviction. When new evidence turns up to exonerate a defendant, the prosecution is to drop the case. The reason is that in a constitutional liberal republican Night Watchman State, the stated purpose of the prosecution side is not to imprison every defendant at all costs, but simply to protect the entire commonwealth from the threat of those who would initiate the use of force. The system tolerates the defense attorney trying to win at all costs because there is a power imbalance between the State, which the prosecution represents, and the private defense counsel. The defense normally has an uphill battle, and the handicapping — letting the defense try to win, while insisting that the prosecution drop weak cases — is to even the odds. If, confronting new evidence of a defendant’s innocence, the prosecution drops the case, the prosecution is not succumbing to a conflict of interest, as the prosecution’s goal is to uphold everyone’s rights.
By contrast, if, in the interest of protecting rights as a whole, Protection Service A surrenders me to Protection Service B, Protection Service A is indeed succumbing to a conflict of interest: it breaks its pledge to cater to what the clients want. There are many people who want to get away with initiating the use of force, and they are willing to pay money to thugs who would protect them against justice — there is a lot of consumer demand for that. If Protection Service A decides to negotiate the terms of my surrender — trying to negotiate Protection Service B into showing me some mercy — that is still an instance of Service A betraying me. If apologists for the competing-protection-agencies system insist that the final result of their system will be maximum justice and maximum individual rights protection for all, then they must abandon their attempt to argue, as a selling point, that their system is also good on account of each protection service being incentivized to fight harder and better for its clients than would a defense counsel provided to a defendant in a constitutional liberal republican Night Watchman State.
Anything Peaceful Is Private and Should Be Nongovernmental; All Violence Is of Public Importance and Must Concern the Night Watchman State
The one crucial distinction between governmental and nongovernmental organizations is that governmental organizations have the threat of socially approved violence on their side. As we know, private parties can indeed initiate the use of force. But when they do initiate the use of force, this is properly considered wrong, and most people properly expect the government to punish those private parties. Contrariwise, when the government threatens violence to enforce its own rules, the government is acting in accordance with its proper job description. The government’s authority derives from its ability to threaten socially approved violence. Violence is what characterizes any and all government, including liberal republican Night Watchman States. Where there is no threat of violence, there is no government.
Because government is nothing but socially approved violence, any enterprise that can be performed peaceably can be performed absent of government involvement. Anytime you are involved in a peaceful activity, you are right to tell disapproving third parties that that they have no business to impose their disapproval violently upon you, and they ought to butt out. Thus, any worthwhile enterprise that can be achieved peaceably should be privatized. Your child’s education is an instance of this. If other people disapprove of how you educate your children, demanding that the State indoctrinate them in ways you do not wish, you should tell those third parties to mind their own business. Another peaceable enterprise is public libraries. Prior to city governments intruding in this area, massive public libraries funded themselves peaceably by charging periodic subscriptions to patrons who frequented these libraries and checked books out of them.
That which is peaceful is private and should therefore be absent of governmental interference. Yet, by the same token, any violence that occurs anywhere, even if inflicted in putative self-defense, can never be privatized and should therefore be of concern to the public and the constitutional liberal republican Night Watchman State.
That consideration is even how the term republic came to be. That which the ancient Romans considered private and nongovernmental, they called res privata — the private matters. At the same time, that which was violent and therefore necessarily of public concern was called res publica — the public matter. As violence is necessarily a public threat that cannot be isolated to private individuals or private resolution, any and every act of violence must be addressed by the “monopolistic” government of a free republic.