Rule-of-law Anarchism:
A Strategy for Destroying the State's Legitimacy

by Kevin S. Van Horn

(This is a reconstruction of the talk based on my notes, with a few alterations and additions.)

Authority: An Essential Source of Power

As you will recall from my talk on Saturday, the grand strategy of a nonviolent struggle is the master concept of the struggle, answering the question, “How are we going to win?” In this talk I would like to propose the outlines of a grand strategy for our struggle.

Our task is this: to weaken the power of the state, and to strengthen the power of the free society, until we have secured our freedom and are no longer subject to the state. You will recall that authority, or perceived legitimacy, is one of the six sources of power identified by Gene Sharp. Authority is arguably the most important source of state power. It produces widespread voluntary obedience, allowing the state to concentrate their coercive resources on the small minority that resist. Likewise, loss of authority is fatal to the state; it “sets in motion the disintegration of the rulers’ power” (Gene Sharp). OTPOR demonstrated this in their successful struggle against Yugoslavian dictator Slobodan Milosevic, which focused on attacking his authority.

I suggest, therefore, that our grand strategy should revolve around destroying the state's perceived legitimacy. Sociologists generally recognize three forms of political legitimacy, first enumerated by Max Weber:

The State Is an Outlaw Organization

The state is widely (though incorrectly) viewed as the source of law, and we must counter this with an opposing message: the American state is an outlaw organization.

This lawlessness becomes easier to see in its particulars by the month, as officers of the state set themselves above the law, break even their own rules, and commit clearly criminal acts. We all know about Ruby Ridge and Waco. We've seen prosecutors withholding exculpatory evidence, as occurred in the Duke lacrosse players case. We've read of countless episodes of police causing injury and death to innocents. We've seen the Bush regime wage illegal wars, engage in illegal mass domestic surveillance, rewrite federal statue through signing statements, and arrogantly dismiss the ancient right of Habeas Corpus. None of the culprits in these crimes is held responsible for their actions.

Yet it is not enough to publicize and emphasize the lawlessness of the current government, as long as the public retain the hope that putting a different group of people into power will change things. The second part of this message then is that these cases of lawless behavior are no abberation, no accident, for the state is lawless in its very essence. Lawlessness is woven into the very fabric of its being, for the very concept of the sovereign state is incompatible with rule of law.

To see this, let us consider two slogans at the heart of American legal tradition that communicate principles essential to rule of law. The first is from the Declaration of Independence:

All men are created equal.

This is the principle of isonomy, or equality of all before the law. It means that both the content and procedures of law should apply equally to all. No person, group, or organization may hold any special, privileged legal position. No person, group, or organization may have any special immunity or exemption from the laws that apply to all others. Americans like to consider themselves egalitarian, and this slogan speaks to such sentiments.

The state operates in violation of this principle, for it is defined by its special privileges and immunities. The state claim for themselves the unique privilege of creating and operating courts; they claim the unique privilege of creating, out of thin air, arbitrary debts owed to them (taxes); they claim the unique privilege of using violence to force others to comply with their demands. They claim the unique privilege of rewriting the very law as they see fit. This alone qualifies as arbitrary rule, regardless of what procedures are used to select the rulers. Shorn to its essentials, the state is simply a privileged group of people set above the rest of us and exempted from the rules of civilized conduct.

The second slogan has been part of Anglo-American legal tradition from time immemorial:

No man ought to be the judge of his own case.

This is just plain common sense, an obvious requirement for any sort of justice. So when one person has a complaint against another, who is to judge? One solution is that some authority picks an indepent and unbiased judge. But what is to be done if that authority is itself a party to the case?

Consider what happens when the state's prosecutor charges someone with a crime. In this case the state are collectively the plaintiff, yet they also supply the judge. If Avis, having claimed that you damaged a rental car and owed them $5000, were to insist that their own legal department must try the case, all would see the illegitimacy of their demand. For the state to try the very cases they prosecute is equally illegitimate.

Likewise, consider what happens when one of us brings suit against the state, or criminal charges are brought against an officer of the state. In this case the defendent is the state, as an organization, or one of its members, yet again the state also supply the judge. Again consider the analogies involving other organizations. Suppose that you went into the hospital for a tonsillectomy and they removed your right leg instead. You sue for damages. Should the hospital's legal department decide the case? Or a mall security guard tells you to stop, but you ignore him and keep walking away, so he shoots you in the back. You sue for damages. Should the mall's legal department decide the case? The answer is obvious.

These arguments may be summed up in one phrase: rule-of-law anarchism. This is the idea that the state is illegitimate because it necessarily violates the principles of rule of law. Thus we see that we have anchored our position in long-established, traditional principles of Anglo-American law. We're not radicals at all; we're practically crusty old conservatives, harrumphing about people who have no respect for centuries-old legal traditions!

Now I would like to turn your attention to the flag I designed for this talk:

Free America banner with scales of justice

Every movement needs its symbols as a way of concisely expressing solidarity and the goals for which they are striving. I would like to propose this flag as a symbol for our movement. The colors red, white, and blue evoke a positive response in most Americans; they are tied to feelings of love of country and ideals of freedom in the minds of many people, and so I have used those colors here. The colors suggest America, but this is clearly not the blood-drenched flag of the United States. The scales of justice stand for the rule of law, and the white symbolizes the purity of our principles. The red and blue are side by side, neither above the other; this symbolizes the principle of isonomy, equality of all under the law.

An Alternative Authority

To successfully challenge an existing authority, it is almost always necessary to provide an alternative authority. People will cling to the familiar if they see no alternative. This alternative can be a higher authority, such as personal conscience, moral principle, religious principle, or other societal values. More concretely, it can be a set of alternative institutions. This latter possibility can be highly threatening to the state. As a historical example, between 1917 and 1921 Irish nationalist rebels against the British state employed the tactic of Sinn Fein, meaning “by ourselves” or “ourselves alone”. They acted as if the British state were not there at all, and organized the community under their own rules and institutions. Judging from the brutal response, the British rulers seem to have considered this tactic more threatening than even the military tactics of the Irish Republican Army.

Providing an alternative authority therefore furthers both of our major tasks: it both weakens the power of the state, and strengthens the power of our movement.

What should this alternative authority be? Natural law, in the abstract; but more concretely, a centerless system of law and courts, independent of the state.

Contrary to popular impression of law as emanating from the state, the historical fact is that law preceded the state. The state was Johnny-come-lately, taking over already existing legal systems and warping them to serve the rulers' ends. There are many historical and even modern examples of well-developed stateless legal systems:

We see that private courts and stateless law are not radical ideas invented by wild-eyed libertarian ideologues. They are, in fact, as old as human civilization. So in a sense, we voluntaryists and market anarchists are really the most hidebound of traditionalists you could find. We're just saying that this new-fangled idea of centralized legal systems under monopoly control just isn't working out, and it's time to return to the traditional concept of law.

Concepts of Stateless Law

Michael van Notten, in The Law of the Somalis, lists four possible meanings of the word “law”:

Politician's law.
This is legislation, statutes, and other rules created by politicians.
People's law.
This is customary law that emerges spontaneously from individual court cases. It is a culture-specific approximation of natural law.
Contractual law.
This is created whenever two parties sign a contract, consisting of whatever agreements they have made.
Natural law.
This is the rules of conduct necessary for people to live and work in peace, based on human nature.

A central feature of customary or natural law is that law is not made, it is not legislated, it is not decreed; it is discovered. The development of customary law is an ongoing effort to discover what the natural law is. It always focuses on resolving the specific issues of the specific parties to a specific case, and thus is far less vulnerable to lobbying and politicking than the process of legislation.

The main elements of natural law as commonly understood are these: lawful behavior means to avoid physical damage to another's person or property; to honor one's contracts; and to compensate those whom one has harmed by infringing on their person or property. In other words, Ayn Rand didn't invent the Non-Aggression Principle; it is of ancient origin. The natural law has no notion of victimless crime; there is no case without a plaintiff to claim injury. Thus customary law tends to focus on compensation for injuries suffered, rather than on punishment. The purpose of law is to see that justice is done — that injured parties are made whole, to the extent possible — rather than to exact vengeance against evil-doers.

Without a central authority, there is the question of how a court is chosen to try a case. In customary legal systems the choice of judge(s) is typically made by some form of prior arrangement, or by negotation between representatives of the two parties. Another common arrangement is to have each side supply one judge, and the two form a court; if necessary these two judges select a third to act as a tie breaker. Customary law typically allows only limited appeals, so that cases do not drag out endlessly; one rule that has been used is to say that the decision of two out of three courts is final.

Under customary law, courts are responsible only for rendering decisions, but not for enforcing them. Enforcement is through a variety of mechanisms, none of them centralized. Economic and social ostracism have at times been effective, such as in enforcing the Law Merchant. Somali law requires both parties to agree in the presence of witnesses that they will abide by the verdict, before a case may be tried.

At least three customary legal systems I know of had a notion of outlawry. If a person refused to abide by a judgment against them, they could be declared an outlaw. An outlaw had no recourse to the legal system; if someone committed a crime against them, they were on their own. Simply put, if you turned your back on the legal system, it turned its back on you. Outlaws generally found life very dangerous and ended up leaving the country.

The ultimate enforcement mechanism is self-help: using force to extract a restitution payment ordered by a court. The reason this does not lead to endless cycles of violence is that social sanction is given for such use of force only after a court ruling, only against those who refuse to pay the required restitution, and only to the extent reasonably required to effect payment. Stepping beyond these bounds exposes one to criminal charges.

Most individuals will not have the resources to force compliance with a court order. A modern society could deal with this through insurance: if the criminal / debtor refuses to pay, the insurance company would pay you immediately and then hire a collections agency to collect the debt. Past and existing customary legal systems have evolved other approaches to this problem. In Iceland a judgment in your favor was a debt that you could sell to another person — presumably someone who had the ability to collect. Ireland had a system of sureties; a person would have prior arrangements with someone wealthier and more powerful to aid them in the collection of judgments when necessary, in return for reciprocal obligations. Somali law uses insurance on the other side: to have the protection of the law you must have insurance that guarantees that any judgment against you will be paid. A Somali's extended family provides this insurance; a foreigner must seek a host who will insure him as a guest.

A Prefigurative Movement

So how do we communicate this message of law without the state? Do we write articles, essays, and books, and give speeches? This is not enough; it is hard to convince people of the need for radical change by words alone. There is a slogan in the open-source software community that is relevant here: “show me the code.” This means that, rather than argue about the merits of different technical solutions, just go ahead and implement your proposal and let everyone see how well it works. We likewise need to show people working examples of our proposals.

We need to become a prefigurative movement. Rather than talking endlessly about what we want, or agitating for someone else to give us what we want, we can simply behave as if we were already living in the stateless society we desire. As Gandhi said, we must be the change we want to see in the world.

We must begin to create this stateless system of law now, rather than waiting for the state to disintegrate first. This requires a commitment to resolving all of our own disputes outside of the state's legal apparatus wherever possible, using mediation, existing arbitration services, or the freedom movement's own natural law courts. Over time we must free ourselves of dependence on the state's “justice” system, even in dealing with crime. We should promote the norm of mutual consent in choice of what court is to try a case, both by word and by our example as plaintiff or defendant.

There is a possible entrepreneurial opportunity here: low-cost adjudication of disputes. A judicial entrepreneur could seek out persons and problems ill-served by the state's legal system; for instance, in many cases people choose to shrug off an injury done them rather than deal with the high cost of taking the matter to court. The lack of licensing requirements for legal practicioners in natural law courts would lead to more competition lower prices for their services, increasing their popularity.

One way of encouraging the development of natural law courts would be to commission a modern-day version of Blackstone's work on the common law, modified as necessary to concord with libertarian principles, and written to be accessible to the intelligent layman. This would require selecting a suitable expert or experts interested in the project and raising the money to pay them. It might seem odd to think of getting a legal education entirely by self-study, but this was common in 19th Century America — it was called “reading the law”, and generally meant studying Blackstone's Commentary on the Laws of England.

For the natural law courts to be relevant there must be enforcement mechanisms. This includes both getting the defendant to agree to adjudication in the first, and then getting the defendant to pay any judgment against them. In other stateless legal systems both violent and nonviolent enforcement methods have been used. It is social sanction — the popular acceptance that certain forms of violence are legitimate once authorized by a court — that makes the use of violent force to enforce a court ruling practical. We don't have that social sanction, and we won't for some time.

We will therefore have to focus on nonviolent means of enforcement. This is not a bad thing; as they say in the software industry, it's a feature, not a bug. After all, we aim to reduce the scope of legitimized violence in our society. Developing skill in nonviolent law enforcement will reduce the perceived need for violent law enforcement. It will help promote the idea that violence is a last-ditch measure to be used only in extreme circumstances, not just because 51% of the populace want the other 49% to do as they say. This will promote social commitment to the Non-Aggression Principle.

I cannot say just what law enforcement mechanisms we will find most effective, but I know where to look for ideas. Further study of stateless legal systems, especially more modern ones (19th-century Miner's courts, the People's Courts of India, and the use of Sharia law between British Muslims) should prove useful. In addition, the methods of nonviolent intervention described in Gene Sharp's works on nonviolent struggle may provide inspiration.

The State Is Not Special

Our efforts to act is if we already lived in a stateless society should be reflected in our attitudes towards the United States, the State of Utah, the Commonwealth of Virginia, and similar groups. There is nothing special about these organizations; they are just a few of the millions (yes, millions) of clubs, companies, and associations within American society. Since none of us here are members of these particular organizations, we shouldn't be concerned with their internal politics, who they elect as officers, whether or not they spend their money wisely, etc.

This view should be reflected in our language. Why in the world would it ever occur to us to use the word “America” as a synonym for some particular one of the millions of associations organized within this country? We would never refer to AT&T's corporate bylaws as “the American Bylaws”; likewise, it makes no sense to refer to the charter of the United States as “the American Constitution”. Those of us not employed by Microsoft would never think to call Steve Ballmer “our president”; likewise, those of us not employed by the United States have no reason to call George Bush “our president”. The fact that Amway is a multi-level marketing organization would never lead us to make the absurd statement that America is a multi-level marketing organization; it is equally absurd to call America a constitutional republic just because the United States has that organizational form. Seeing the state as just one organization among many, we would never think of the U.S. as “us”; as none of us here are employees or officers of that organization, the U.S. is just another “them”.

We want to avoid according the state any sort of special status via our choice of words. Beyond the examples already given, we should avoid using the word “public” — which means “the people” — when we really mean “government”. For example, so-called public schools are actually government schools; public parks are actually government parks; and public libraries are actually government libraries. A good replacement for the word “private” would be useful, as it acknowledges a special position for the state by giving a name to everything that is not the state. This is like having a special word, nonibmeous, meaning those parts of society that are not part of IBM. I prefer the term “civil society” as a replacement for “the private sector”; it relegates the state to the dark corners of society occupied by muggers, the Mafia, and other violent elements. Finally, I would encourage you to avoid calling the demands of government officials “laws”; they are legislation, statutes, or rules, but by the standards of natural law very little of what emanates from Congress, the State Legislature, or City Hall can properly be called law.

Of course, others will insist that the state is special, and that its officers should receive special treatment. The proper response is for us to remain stubbornly and willfully incapable of comprehending why anyone would think so. Don't argue about it; just assume that the state isn't special, and let the state's supporters explain why its officers should be exempt from the rules of civilized conduct. We should be like the Somali immigrant who couldn't understand why the cops kept on pulling his car over and fining him; the idea that he had to get a government permission slip to drive was simply too bizarre to even occur to him.

This attitude of refusing to see anything special about the state should extend to cases of arrest and prosecution for acts that are not true crimes. (This might occur due to deliberate civil disobedience, or we might simply be supporting some victim of the state.) The first question we will want to repeatedly emphasize is, “Who's the victim?” This question not only focuses attention on whether any real crime prompted the arrest and prosecution, but it also suggests an answer: the person who was arrested is the real victim. This question is not aimed at the police, prosecutors, or courts, whom we do not expect to sway; it is aimed at the larger audience whom we wish to influence. The person arrested might say something along the lines of this: “I am truly sorry if I have infringed on the rights of another person, and I want to do whatever is necessary to undo any harm I may have caused. Could you tell me whom, specifically, I have harmed, and how?”

The next step is to publicly offer to submit the case for adjudication by an independent court. We would, of course, reject as absurd the idea that the same group of people bringing the complaint could also supply the location, judge, and procedures to be used in trying the case. No man ought to be the judge of his own case. We would insist on the usual procedure of mutual consent in selection of a court, on equal treatment for the two parties, with the same legal standards applied to both sides, recognizing no special privilege for the state. To all claims of such privilege, our response is the same: all men are created equal.

A similar procedure applies when government personnel are the defendants, having caused deliberate or accidental injury, perhaps in the course of violently enforcing some legislative decree. The first thing to do is to focus on the specific people most directly responsible, and publicize the charges against them. We then publicly deliver the demand for independent adjudication, again rejecting as absurd the idea that the defendant's employer should choose the location, judge, and legal procedures to be used in trying the case.

In the earlier stages of the struggle all this would serve only to publicize our message. But as the struggle progresses, there will come a first time when we will succeed in using the methods of nonviolent intervention to pressure some prosecutor to submit a case to third-party adjudication. This will be a definitive moment in our struggle, for it will signal the first crack in the edifice of state sovereignty.

Legitimacy of Our Movement

Our efforts to weaken the perceived legitimacy of the state should be accompanied by parallel efforts to promote the legitimacy of our movement and our system of law. We need to create a stark contrast: one the one hand there is the lawless, violent, brutal state; and on the other hand there are the nonviolent, law-respecting Free Americans. Of course, we will need to combat the perception that we are lawless because we do not respect the government's statutes. Thus we need to promote the idea of natural law, that an act is lawful or criminal on its own merits, and not because of the decree of some group of rulers. The idea of natural law is more important than the specifics of its content, because once this idea is accepted, the state and its statutes are no longer relevant when discussing the lawfulness of an act.

To be seen as law respecting, we have to be law respecting by the standards of natural law. Obviously, we must respect the persons and property of others, and keep contractual commitments. Beyond this, if someone claims that we have caused them injury or breached a contract, we cannot be judge of our own case; we must be willing to submit such disputes to independent judgment. Arbitration is a thriving industry in this country, so there should be no problem in setting up such independent adjudication. And once judgment is passed, we just be willing to accept the outcome, whether or not it is in our favor, or follow any accepted appeal procedures.

As a final comment, we need to combat any perception that we are freeloaders. When we resist paying taxes, the argument will be made that we receive certain benefits and services from the state, but we don't want to pay for them. It is true that we never contracted for any of these benefits, and are actively opposed to many of them (such as the “benefit” of endless war in the Mid-Eeast). Still, our position will have greater legitimacy in the public eye if we can say that we don't ask for anything from the state, we don't want anything from the state, and we don't need anything from the state. We want to be able to say, “We never signed up for your club and we have no desire to be part of it.” Furthermore, avoiding the use of government services strengthens us directly: dependence on the state is vulnerability to the state.

Conclusion

Let me summarize my main points:

Victory is then measured by the degree to which the state can be compelled to submit to an independent court in prosecuting a case against a Free American or defending against a complaint brought by a Free American.