Chapter 4

The inevitability of the State

Part of the overall thesis of this work is that anarchism deserves to be taken seriously as a social and political philosophy in its own right, with a vision of the ideal society that differs appreciably from other prominent political philosophies. But I also argue that anarchism's most potentially useful and enduring contribution to political thought will not be what has traditionally constituted its central thesis: the expendability of the state. In this chapter, I will argue that neither left-wing nor right-wing anarchism presents a convincing model of a possible future stateless society. I will conclude that the primary value of anarchism in fruitful political and social discussion is its presentation of a distinctive view of the moral agent and a model of non-exploitative social interaction, elucidated in the rest of this dissertation.

In chapter 1, I discussed the difference between libertarian anarchism and communal anarchism. Libertarian anarchists focus their animus primarily on the state itself: a stateless society, they propose, should develop a corporate, market-oriented society like our present one, the sole difference being the absence of the state. Communal anarchism, in contrast, opposes all forms of centralized power and domination. Both, however, face the question of how to reproduce the state's current functions in a stateless society. Some of these functions, we may suppose, could easily be taken over by individuals or privately-run agencies: public support of the arts, for example; or welfare.[1] But the question facing both right and left forms of anarchism is whether the minimal functions necessary for the existence of a state can be produced without state monopoly of power or coercive taxation.

Is the state a pragmatic certainty?

Before I discuss the question asked in the last paragraph, I will address a common pragmatic argument. In its briefest form, it is: anarchy will never happen, because states are not going to go without a fight. The sort of activity that would be necessary actually to produce anarchy would require either 1) an almost impossible forcible seizure and dissolution of every state government, using organization and strategies that are anathema to the very core of anarchist doctrine; or 2) an equally unlikely gradual movement toward anarchy in every great state society, without exception (for the temptations that the remaining states would face if the movement were not simultaneous would almost certainly be irresistible). Simply stating these conditions should make obvious the small likelihood of achieving anarchy within the near future. To his credit, Michael Taylor straightforwardly admits the basic truth of this argument, though his subsequent suggestions for anarchist strategy are unfortunately sketchy.

But these arguments do not necessarily bury anarchism as either a political theory or as a practical movement. For one thing, even a currently impracticable political ideology can still maintain a compelling vision of the ideal society, an image of what we ought to strive for. To take a contrasting political ideal as an example: no society has ever resembled Plato's ideal Republic, but that does not mean that we therefore have a good excuse for refusing to take Plato's ideas seriously. An ideology that seems wildly unfeasible in current political circumstances may still be worth pursuing in some form; it may even turn out to be a guide to action if the conditions do, serendipitously, come to favor our supposedly impractical ideal.

Nor is it guaranteed that anarchism is worthless simply because it appears unreachable in the near future. Our political experience in only the last century should teach us that extremely unexpected things can happen. The astonishing triumph and almost equally unexpected fall, seventy-five years later, of Soviet Communism; the horrors of Nazism and world war; the development of technology; all these events and conditions should warn us against too-confident predictions about what is or is not possible. There is no saying what several centuries or even decades may bring. Long-term, concerted efforts might eventually result in substantial social change. Short-term attainability is a desideratum, but not a sine qua non of a respectable political theory.

If we admit that it is reasonable to expect the unexpected, we may still question the prospects for anarchism not on a short-term pragmatic basis, but more deeply. Is a desirable anarchy even possible without making insanely implausible assumptions about human nature? Have we any hope of actually achieving an anarchy that works, or is anarchism merely an insanely utopian ideology?[2]

My response to this question is twofold. I will briefly argue that desirable anarchy is and has been possible: I will describe the anarchic conditions under which human beings lived for millennia, and under which many people still live. But I will then argue that such a condition is almost certainly unattainable for people who live in modern industrial and technological societies. Anarchy -- life without the state -- has succeeded in the past and still exists in some remote, technologically primitive areas, but it is not a feasible future condition for our society, either in its communal form or in its libertarian form. If we are to have an anarchist vision of the future, it will have to include a state of some kind. The question that will then be discussed in future chapters is whether anarchist theory still has anything worthwhile to say.

The possibility of anarchy

One of the more noteworthy developments in anarchist thought in the last fifteen years has been its use of anthropological analyses of pre-state societies. Michael Taylor, Marshall Sahlins, and Harold Barclay have all produced extended descriptions of the forms that societies have taken in the absence of a state.[3] While these books are available for consultation by readers, making a lengthy and detailed summary on my part unnecessary, some overview will be helpful in making my case both for the possibility of anarchy in some circumstances and its impossibility in others.

In the last two chapters, I defined and argued for some of the central features of anarchism. The desirability of these features had been argued for by Godwin and other anarchist writers before the extensive anthropology of our current day made obvious just how many human societies lived or live under actual conditions of peaceful anarchy.[4] Furthermore, the actual peaceful anarchies which have existed typically share many but not all of the desirable features discussed earlier. For example, many anarchies (like most other societies) have some degree of male supremacy, which is certainly not among the conditions mentioned in the ideal anarchic vision given above. So my subsequent task will be twofold: describing the conditions that usually hold in actual lived anarchies, and then comparing them to the ideals mentioned above. The details of real anarchies may lead us to revise our ideals, or at least qualify the extent to which we regard them as ultimately attainable. And, of course, ideals independently reached may give us some means to criticize anarchies that we actually observe.

Actual anarchies

The puzzle that must immediately confront someone who thinks that states are absolutely necessary or unavoidable is how anarchic societies survive without the protections provided by the modern state: police and military protection, a judicial system, social welfare programs. But as we shall see, anarchic societies are able to take care of all these functions without resort to centralized authority or external help.

Anarchic societies, to qualify as anarchic at all, must refrain from the use of legal sanctions. This is not only a defining feature but, according to anarchists, a positively desirable one. A society that uses punishment and coercion is using flawed and inherently undesirable tools. And remarkably enough, there are societies which use only diffuse sanctions, sanctions which can be applied by anyone. These sanctions range from the very mild to the severe. For example, among the San ("Bushmen") of the Kalahari in southern Africa,

San fear fighting and avoid all hostility. At the same time fights do arise and sometimes lead to killing. Most conflicts are in the nature of verbal abuse and argument relating to food and gift distribution or accusations of laziness and stinginess. When actual physical combat is provoked those around the combatants, most often close kin or supporters of one of the protagonists, immediately seek to separate the participants and to pacify them.
(Barclay 1990, 46)
Serious disagreement and violence among members of the group are avoided by the presence and immediate concern and action of closely involved group members, most of whom are related by kinship. An additional element, also, is the fact that these kin could carry out retaliatory action against a violent offender.

In many cases, also, religious beliefs strongly dissuade individuals from taking violent action against their fellow group members. For example, among the Konkomba of Togo:

...the most horrendous crimes are not punished by men at all... if a man kills a fellow clansman he would himself die. "God," say the Konkomba, "will not suffer to live one who has killed his brother and there is no ritual or medicinal protection for the fratricide" (Tait, 1950, 275). Tait, however, believes that murder of fellow clansmen does not actually occur. (Barclay 1990, 62)
The threat of supernatural revenge carried out by the injured parties is a notably effective deterrent: for recipients of curses are known to die for no apparent reason other than the knowledge that they have been cursed. Apparently, kin intervention and fear of violent and/or supernatural retaliation are effective at keeping violence at low levels.[5]

Thus far, the sanctions used against serious offenses in anarchic societies are close (but not identical) to the non-coercive ideals expressed by Godwin. Such societies do not completely abjure the use of violence, for example in retaliation for violence, or in self-defense. But as I have noted, Godwin was not unrealistic; he knew that sometimes resorting to violence in self-defense is unavoidable. In addition, Godwin would presumably have looked askance at the use of magical threats, at least to the extent that they appeal to beliefs that cannot be defended scientifically or rationally. But on the whole, the strong aversion to violence and the social control -- intervention of kin who strongly urge compromise and cooling of emotion -- match Godwin's model fairly well.

Another means available to groups is to ostracize or exile an offender. This is fatal in many situations, for in such societies individuals are often unable to survive without aid from the group. Neighboring clans or cultures may be willing to accept an exile, though typically such a person lives under a cloud of suspicion and distrust because of the exile. Exile can be a serious and much-feared deterrent even when surrounding cultures do not place any stigma on the exile: for example, tightly-knit religious communities in the United States such as the Amish or Mennonites (descendants of the pacifist Anabaptist movement) are able to control offenders by shunning them. Although it is possible for shunned individuals to survive, their tight links to the community usually lead them to try to reconcile themselves with the group. Decisions to ostracize or exile are made by the entire community, and are revocable by the community (usually contingent upon public apology and penance).

Ostracism, though not necessarily involving the use of physical force, clearly is coercive. Since anarchist ideals demand a minimally coercive society, ostracism would have to be regarded as acceptable only as a very last resort. But as we have noted previously, it is misleading to think of anarchism as a philosophy that seeks a complete lack of coercion. Godwin and the other classical anarchists had a very dim view of physical coercion; but the moral censure that these writers depend upon for social control can clearly be emotionally or intellectually coercive. These varieties of coercion are, obviously, not the anarchists' ideal mode of social control; but their use may be necessary when someone is unmoved by rational means of persuasion. And, in contrast to some legal means of social control, at least community ostracism is a step that requires a remarkable degree of consensus on the part of the community: in most cases, a degree of consensus that will be based in publicly known facts about the person's offenses.

Non-physical, decentralized, extra-legal sanctions thus can be quite effective in keeping violence and serious disputes to a minimum. We should note for later reference, however, that such sanctions are most effective in circumstances where religious and social beliefs create a very strong aversion to violence; where kin and close friends are readily involved and concerned to prevent serious problems; and where exile or ostracism can cause complete social isolation and even death, i.e. there is great dependence upon the group for social and economic support.

Anarchic cultures also use diffuse sanctions to deal with less serious offenses. Interestingly, one of the offenses most often involved in such sanctions is the offense of social inequality: attempting to obtain a special or elevated status within the group (for reasons other than those of rational authority; i.e. undeserved status, or status that outlives its time of appropriate attribution). These diffuse sanctions typically involve actual or threatened attacks on reputation or public standing. Common sanctions are the use of gossip, ridicule, and various methods of public criticism:

...these societies have a great variety of practices -- usually institutionalized, standardized and hedged about with conventions so as to prevent them getting out of hand -- whose aim is to criticize, shame or ridicule persons suspected of committing delicts or in some cases to publicize the delict and to discover its perpetrator. An example of both is given by the Hopi's use of a sort of public crier, who chants grievances in a standardized manner from a rooftop, expressing regret that such things should be done (thereby underlining Hopi norms) and reprimanding the offender or calling on the pueblo for help in identifying him.

... on Goodenough Island (off Papua) ... harangues delivered from a house-top on a dark night publicize delicts to most of the village with the intention of shaming an unknown offender and may result in the exile of a named offender...
(Taylor 1982, 84-5)

As Taylor notes, these shaming rituals have considerable potential for abuse, and are thus themselves carefully regulated, partly by social response, partly by internalization of the social attitude toward the rituals.

This latter point -- internalization of social norms -- is greatly stressed by Taylor; he points out that many of the diffuse sanctions that protect societies from social unrest are applied only rarely and to clear violations of generally accepted rules. This light application of explicit sanctions is made possible by the extensive socialization in the group. We can find an example of such socialization among the !Kung, a San sub-clan:

!Kung children are never harshly punished. One father said that if he had a boy who was quarrelsome or who disobeyed the rules -- for instance, the absolute rule of the !Kung against stealing food or possessions -- what he would do about it would be to keep the boy right with him until he learned sense.
(Barclay 1990, 47)
Socialization is generally effective, perhaps because it is so pervasive. Again we find these anarchic societies matching the characteristics recommended by the classical writers: socialization and social sanctions are available everywhere and are not imposed solely by a centralized authority; and they are non-coercive, relying primarily on gentle persuasion and correction. As an often-quoted African proverb states, "it takes a village to raise a child."

Not incidentally, the effectiveness of socialization and social intervention is heavily dependent on the presence of substantial numbers of concerned people, typically kin; and no less dependent on a solid base of agreement on social norms. This latter feature is not, of course, unachievable; but it does seem to imply considerable social and cultural homogeneity.[6]

Finally, one might wonder what happens in case a group becomes involved in widespread conflict that it is simply incapable of resolving. Typically, such groups avoid violent resolution of conflict; instead, the factions take the anarchistically-approved method of withdrawal. The smaller faction moves away from the village and sets up a new settlement elsewhere. Since most anarchic societies are small and have low material standards of living, resettlement is not as logistically difficult as it would be in a society more dependent on possessions.

By this point, two central themes should be coming into focus. First, these societies are very close to some of the ideals expressed by Godwin and other modern-day anarchists. Anarchy is indeed possible, although most anarchies depart to some extent from the ideal society depicted by Western anarchist writers. Second, the success of the anarchic society is dependent on a restrictive set of social conditions.

The conditions that make anarchy possible

To summarize: successful anarchies, both past and present, generally share the following characteristics:

  1. Relatively small size, with some acquaintance between all members.[7] This allows the members to make decisions by consensus (including decisions about ostracism/exile).
  2. Extensive ties of kinship and/or trading relations among group members.
  3. Pre-industrial (and typically pre-agricultural)[8] economy that leaves each individual partly dependent on the group for daily survival. This makes public opinion and the threat of ostracism powerful motivating factors.
  4. Cultural homogeneity.
  5. Pervasive socialization that stresses avoidance of direct conflict and violence.
  6. Strongly held religious beliefs or superstitious fears that dissuade prolonged or violent conflicts with group members.
It is also tempting to add as a characteristic a sense of settled social order -- not necessarily a social hierarchy, though some societies have such hierarchies, but a sense that the group has a reliable place for one and that life is not likely to change very radically. Although the successful anarchies mentioned generally have this characteristic, it is not clear whether this is a cause or an effect of their success. Furthermore, some sense of social order is a prerequisite for any society's flourishing, not only anarchies.

Now we must ask: are the characteristics just mentioned plausibly attainable in modern industrialized nations? Can a market-oriented, technologically sophisticated, open society ever come to depend exclusively on non-coercive diffuse sanctions? The answer, I think, is no. There seems to be no path from "here" to "there" that does not require ridiculously implausible social changes or unconscionable political action.

The first condition -- small group size -- is not completely out of the question. As noted above, some acephalous cultures include hundreds of thousands of people over considerable stretches of terrain. As long as the culture is built up out of small units (as indeed much of the Western world was and still is outside the major cities), anarchy may still be possible. This is not a widespread reality in contemporary Western society, especially American society, which has high levels of physical mobility. But a society which put great emphasis on keeping its families physically (as well as emotionally) close might succeed in keeping most of its children near their relatives, even if some part of their lives (perhaps college) was spent elsewhere. Indeed, in some parts of Appalachia and the deep South, this clannishness is a reality.[9]

But the third characteristic is much more problematic. Primitive anarchies relied on the power of economic necessity -- direct appeal to personal survival -- to keep their members in line. Today's economies are simply not set up in such a fashion, and it is difficult to see how they ever could be. While I argue in chapter 6 that modern communities can regulate much action by the use of reason and diffuse sanctions, it is difficult to see how they could hope to rely exclusively on those sanctions. Since it is quite easy for an individual to start over again, leaving behind former compatriots, and individuals are almost never seriously dependent for their economic well-being on their neighbors or kin, this threat of economic withdrawal has lost its teeth, leaving individuals that much less willing to revise their offending behavior solely on the basis of public opinion.[10]

Nor is this the only problem. Although most anarchic societies are relatively peaceful both inside and outside the group, it is undeniable that the taboos against violence are weaker when directed against outsiders. And outsiders, of course, are even less likely to be able to dissuade people from unwanted or violent action solely on the basis of non-coercive sanctions, for they have no bargaining power. Threat of retaliation is the only likely candidate for prevention of crime, and it is not an ideal anarchist method.

It is also worth noting that the threat of retaliation is itself contingent on being able to identify, locate, and overpower offenders. In low-technology anarchies, people move at walking (or horse-riding) speed. Almost all criminals will be well-known near the place of the crime, and witnesses are likely to be close at hand. Virtually all serious crimes are based on publicly known feuds or fights. Money and possessions are unimportant, almost never sufficient motivation for serious anti-social behavior. Organized planning is at a minimum; physical force and skill are ultimate limits on what any offender is able to accomplish. In these circumstances, punishment, if necessary, is not overwhelmingly difficult to carry out. One must suppose that it was only rarely that a serious offender was able to escape unpunished.

Modern society, of course, lacks all these characteristics. The fluid nature of the society allows strangers to enter new societies easily and leave behind old ones just as easily. Modern communications and transportation technology make it easy to commit a crime in one area and be across the country, or across the world, within hours. Firearms render it easy for serious criminals to overpower unarmed or disorganized captors. And, not least, modern society provides the anti-social with considerably more motivations and categories for unwanted behavior. Low-technology civilizations simply do not have most of the opportunities for crime that modern civilizations do. They lack most possessions and many social categories that cause trouble in modern societies. Expecting to find and capture a criminal based solely on personal knowledge and diffuse sanctions is utterly implausible.

This situation is even more serious when we think of more than crimes by individuals and consider the possibility of organized criminals whose desires include the amassing of power. It is hard to see how any peaceable, acephalous society could effectively avoid being taken over by organized gangs of brigands. Any organized, hierarchical social structure has some inherent advantages in practice over people who are essentially disorganized, at least in situations like warfare and large-scale public works.[11] As is frequently remarked, even the thoroughly anarchist elements in the Spanish state during the Civil War created militias that worked semi-hierarchically.[12] Although we can imagine the country divided into neighborhood associations which are sufficiently armed and organized to put off takeover attempts by outsider gangs, this hardly seems like an attractive anarchist solution. The level of central organization that would be necessary for a small, acephalous group to protect itself against the development of organized brigands on the small scale is highly un-anarchic.[13] In essence, it means an entire society organized into militias, with the threat of violence an ever-present rather than remote possibility.

And finally, modern patterns of settlement take away the one reliable safety valve that primitive anarchies depended upon: migration. The primary historical reason for the vanishing of almost all anarchic societies in modern times has been absorption or conquest by neighboring state societies, which were themselves trying to expand into new territory. The lack of new territory is an even more pressing reality for modern industrial societies.

It is hard to see how any technologically advanced anarchist society could effectively prevent crime without resorting to at least some extent of centralized organization. Given that modern society is characterized by an increasingly intricate division of labor, it would be odd indeed if we did not find that division of labor extend to the business of preventing and punishing crime. Godwin and Proudhon recognized this problem to some extent, proposing to replace state functions with voluntary federations of parishes to handle necessary central planning and social protection.

The problem with voluntary federations is that they have a tendency to fall apart. Without the threat of coercion to hold a federation together, its component parts are free to secede over any dispute, even apparently trivial ones. Practical attempts at anarchism (for example, in areas of Russia after the 1917 revolution, or in Spain during the Civil War) have generally relied on military force to hold together reluctant confederations.[14] This is a major falling-off from the non-coercive ideal.

But before we abandon the stateless ideal entirely, one other anarchist vision deserves a brief look. This is the vision of anarchism proposed by the capitalist anarchists, most prominently Murray Rothbard. If we admit that some level of coercion may be necessary to hold a society together, perhaps we can limit that coercion to physical protection and enforcement of contract. This is the familiar standard (statist) libertarian view; but the libertarian anarchist would allow the use of such legitimate coercion by any enforcer, without regarding the state as having a monopoly on coercion.

Justice in libertarian anarchy

Throughout his work, Rothbard attempts to show that services which are often considered "natural monopolies" are nothing of the sort. The most often cited "natural monopolies" are police and judicial services. Rothbard proposes that police and judicial services could simply be placed in the hands of private concerns.

Private, competing police departments are apparently simple to envision, as we are already familiar with private security services. Individuals would hire these services to protect themselves and their property. The consumer could buy a protection contract specifying the hours during which patrolling would take place and the number of security guards assigned to his or her property. Groups of individuals such as an apartment building or a city block could buy group contracts; but no individual geographically within the group would have to join the group plan.

We might be concerned that private security services would protect only their own customers, or that very poor people would be unable to afford police protection at all. Rothbard remarks that the first problem is unlikely. If a robbery, for instance, takes place on a street which has hired its own security guard, presumably (says Rothbard) that street's guard would protect all individuals on the street as part of the contract. Even if this is not so, or if the robbery takes place on a street without protection, he says that

it is scarcely conceivable that private police companies would not cultivate goodwill by making it a policy to give free aid to victims in emergency situations and perhaps ask the rescued victim for a voluntary donation afterward.
(Rothbard 1978, 223)
And we can expect that police protection would be available to the very poor because of aid from charitable societies, or because protection agencies would extend protection free or at reduced rates, again in an attempt to gain good will. I will return to this point later.

Although we familiar with the idea of independent security and investigation agencies, we are generally unused to the idea of independent courts of law. How could a judicial system be handled by private businesses? Rothbard calls our attention to the existence and success of independent, privately owned, for-profit courts, i.e. agencies of arbitration. Privately owned arbitration associations were developed in the late 19th and early 20th centuries as a means of regulating and enforcing contracts between merchants. Although their decisions were not supported by the United States government until the 1920s, they were generally obeyed. Merchants feared the ostracism and blacklisting that would follow if they spurned the arbitrators' decisions.

Rothbard claims that arbitration societies could replace the court system. The decisions reached by the arbitration courts would constitute a widely accepted body of precedent, which would be similar to the English common law of days past. The one substantive suggestion Rothbard makes about the courts is a rule about judicial appeals: he recommends that the libertarian society should hold binding any decision reached by two arbitrators.

Couldn't [a lawbreaker] escape judgment by appealing ad infinitum? Obviously, in any society legal proceedings cannot continue indefinitely; there must be some cutoff point... In the libertarian society, there would also have to be an agreed-upon cutoff point, and since there are only two parties to any crime or dispute -- the plaintiff and the defendant -- it seems most sensible for the legal code to declare that a decision reached by any two courts shall be binding.[15]
(Rothbard 1978, 234)
Rothbard would thus reform criminal legal action, reducing it to a species of civil action, where proceedings can only be brought by an individual (or corporation). Currently, only the state has sovereignty to file criminal suits; the victims of crime (or their relatives) do not have such sovereignty. Rothbard would return sovereignty to them.

Rothbard's proposal has a great number of evident flaws; for example, one might object that his system would make it appallingly easy -- perhaps even de facto legal -- to victimize children or other people incapable of bringing legal action against their victimizers. Although Rothbard would allow relatives of incompetents to bring suit, he does not bother to envision cases where the only legally recognized representatives of the victim are the ones doing the victimizing -- such as in child or elder abuse. This would be exacerbated by the other likely conditions of a libertarian anarchy: people could treat their children and invalid relatives like virtual slaves; since education would not be compulsory, the child would never be seen by teachers or other potentially concerned adults. Police and social workers would be employees of private companies, with no recognized power to require questioning or legal examination of the possible victims. And apparently if parents were to kill their child or invalid relative, there might be absolutely no one with sovereignty to sue the parents for murder. While society as it is treats murder as a crime against the people as a whole, Rothbard would have no libertarian rationale at all for thinking of it in that way.

Rothbard frequently pulls himself out of such dilemmas by assuming the existence of charitable societies. He does this explicitly in the case of the legal access of the poor (see Rothbard 1978, 224-5). In the United States, there are presently some charitable societies dedicated to legal aid for the poor; presumably in the libertarian society there would also be societies dedicated to legal aid for the incompetent. Is this sufficient to protect people's rights, particularly given Rothbard's emphasis on the importance of protecting rights?

I believe that it is not sufficient. We cannot credibly assert that charity will take care of this problem. Charitable societies might be formed; but this is no guarantee that they would fulfill the purposes for which they were formed. We would have to be quite sure that they would be adequately supported before abandoning current protective institutions. Police and judiciaries might extend protection and judgment to people without money; then again, they might only do this in a token number of cases. Public sympathy is useful, but I suspect that its marginal value to a profit-seeking corporation declines rapidly above a small number of well-publicized cases. It is unlikely that charity could compete with coercive taxation as a source of funding for the institutions minimally necessary to protect the legal rights of the poor and incompetent.[16]

Finally, there is the matter of what sort of justice we could expect from a libertarian judicial system. Anarchists (of all persuasions, left and right) are fond of pointing out that the judicial system, as an organ of the state, is naturally inclined to favor the state whenever possible. We ought not to forget that in an anarcho-capitalist system, the judicial system would be an organ of capital. Working from the same logic, we can suppose that the anarcho-libertarian judicial system might be inclined to favor property owners whenever possible. And given the role of precedent in law, this could be a serious problem.

The weight of judicial precedent and opinion might favor large corporations in lawsuits over shoddy or dangerous goods, work-related injury or death, pollution, and so on. Even honest, well-meaning judges might favor the wealthy for any number of reasons. Links of friendship, class, and race are the most likely reasons for bias. And judicial corporations aiming for a profit would certainly keep in mind that a large portion of their business would come from businesses. Even if some courts ruled in favor of "the little guy," other courts would have substantial motivation to provide appeals decisions favorable to corporations, which would be able to pay larger fees. As David Miller remarks,

The individualist proposal that parties to a dispute should resort to a commercial arbitration agency seems open to the obvious objection that the agency is liable to favor the party with the larger bank balance at his disposal.
(Miller 1984, 177.)
Rothbard responds:
What of the court which favors its own wealthy client in trouble? In the first place, any such favoritism will be highly unlikely, given the rewards and sanctions of the free market economy. The very life of the court, the very livelihood of a judge, will depend on his reputation for integrity, fair-mindedness, objectivity, and the quest for truth in every case. This is his "brand name." Should word of any venality leak out, he will immediately lose clients and the courts will no longer have customers; for even those clients who may be criminally inclined will scarcely sponsor a court whose decisions are no longer taken seriously by the rest of society, or who themselves may well be in jail for dishonest and fraudulent dealings. (Rothbard 1978, 244)
But our concern is not with dishonesty; it is with built-in bias. And if such bias were widespread enough, ostracism of these "business courts" would be totally worthless; it is more likely that they would be regarded as simply providing a different body of precedent. These considerations become even more pointed when one applies them to police agencies. Corporate-owned private armies have lent themselves quite readily to abuse. One need look no farther than the history of the Pinkerton agency to see this. There is a fine line between a protection agency and a protection racket, and it is foolish to think that the absence of a watchful state would inspire future Pinkertons to greater generosity and fairness.

But is the state any help? In what sense is the state any more than another biased player in these stakes -- and, worse, one with unlimited power? The answer is that a state can represent more than the malign interests of a central bureaucracy; if it is a democratically elected government, it has some claim to representing the will and interests of the people as a whole. If suffrage is extended to all adults regardless of sex, education, wealth, or influence, the resulting government is likely to recognize rights that business-oriented arbitrators might ignore.

State-appointed judges in the U. S. have quite frequently placed substantial limits on the state, not least because they were guided by democratically chosen laws (including the Constitution) that protected individual rights. One need only review the last few decades of First Amendment adjudication to see many examples of the judiciary acting to limit state power.[17] It is true that not all governments have constitutions, or fair democratic elections; but then again not all anarchies are just or libertarian. Governments at their best have institutional safeguards against tyranny that far outweigh the Rothbardian "invisible hand" safeguards.

These considerations apply just as firmly to communal anarchist proposals for federation. Federated groups with divergent practices would need some way to resolve disputes; and all groups in a society, federated or not, would need some means of dealing with each other if they came into conflict. I conclude that neither communal nor libertarian anarchists have provided a plausible picture of modern life without the state.

Our next task, then, will be to find a way to reconcile the anarchist ideal with the need for the state. This is the topic of chapter 5.

Notes to chapter 4

[1] This is not to say that these functions would necessarily be taken over to the same extent, or in the same manner; but we have history and models to help us understand how such agencies might work. [2] I am interested in the possibility of a desirable anarchy, one which attains the political goals of peace, social justice, and non-exploitative relations. An undesirable anarchy is all too easy to achieve, and can be found in a variety of places (no doubt the reader can easily supply some examples).

[3] See Barclay 1990, Sahlins 1972, and Taylor 1982.

[4] The noted anarchist theorist Prince Peter Kropotkin was himself a pioneer of anthropological investigation into stateless societies. See Mutual Aid, Kropotkin 1914.

[5] See Barclay, op. cit., 127. Although estimates of !Kung San homicide rates are approximately double those of (recent peacetime) US rates, this does not take into account (for example) differences in medical capability between the two societies.
     Elizabeth Anderson has pointed out to me that the murder rate in San society may also be biased by the incorporation of many San into anti-guerrilla squads by the South African government during its fight against Namibian independence. A hunter-gatherer society trying to re-incorporate heavily armed veterans of guerrilla warfare will probably not have the same murder rate as a hunter-gatherer society that has not undergone similar disruptions.

[6] Barclay makes a similar point, noting that the most successful attempts to form anarchist communes inside industrial society -- typically in Britain and the United States in the late 1960s and early 1970s -- were culturally homogeneous; attempts to bring together widely varying groups of people were more likely than most to fall apart through in-fighting or attrition.

[7] Some anarchic societies comprise surprisingly large numbers of people. The social "building block," however, is always a small village-size unit. This contrasts sharply with many Western social and city-planning conventions.

[8] Most acephalous societies are hunter-gatherers, gardeners, or occasionally herders. Many are nomadic or semi-nomadic. The settled nature of most agricultural societies, and the amount of organized effort necessary to produce irrigation and (in Asia) crop terraces usually encourages the development of a higher level of centralized authority. See Barclay 1990.

[9] For example, former President Jimmy Carter writes: "It is sometimes difficult for non-Southerners to understand how stable the population of rural southern communities had been since European settlers moved into these areas five or six generations earlier. The majority of our family members were direct descendants of these pioneers, ...and the intermarriages and blood kinships in the neighboring towns were extensive and intricate. [My wife] Rosalynn was one of the few female residents in Plains who was not related to me, at least within the last 120 years or so." Carter 1992, 31.

[10] This is not to say that modern society has made it easy or unstressful to deviate from the norm; see chapter 6. But rebellion is rarely if ever life-threatening, and in some cases is even expected (among adolescents, for example) or romanticized.

[11] Not incidentally, "government by gangs" has been suggested as a common historical circumstance of state formation and expansion: gangs of brigands create states by subduing peaceable anarchic peoples.

[12] Though only semi-hierarchically. See Orwell 1952 for a description of how his leftist, anarchist-influenced militia functioned.

[13] This is particularly striking because such organization would have to include legal-style penalties against "wildcatters" who refuse to obey orders necessary to the defense of the community, as in Spanish Civil War anarchist militias.

[14] Admittedly, both societies were in the midst of externally imposed wars at the time. Still, there is no reason to think that the fractiousness that erupted in both areas would necessarily be any better in peacetime, when the need for social solidarity is even less manifest.

[15] Italics in the original. Note that this ignores the possibility that succeeding courts may agree on imputation of guilt or liability, but not on sentencing, fine, or other punishment. It might take years before two courts agreed exactly. Rothbard misses or ignores many of the difficulties of a non-hierarchical judicial framework.

Furthermore, as was suggested to me by Darryl Wright, it is hard to see what force declaring such an appeals procedure could have in a thoroughly anarchic society. The appeals procedure would be just as open to divergent conventions and agreements as any other feature of the legal system.

[16] 16It is worth noting, incidentally, that some currently existing public institutions which serve utilitarian ends (or, for Rothbard, more sinister State ends) tend to make the protection of rights easier. Compulsory public education, as I previously mentioned, can let public officials detect child abuse and neglect much more easily than if education were voluntary.

[17] Another good example this is the series of judicial decisions to limit state control over reproductive rights: for example, Griswold v. Connecticut and Roe v. Wade.

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