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Stateless Society: Frech on Rothbard

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Stateless Society: Frech on Rothbard STATELESS SOCIETY: FRECH ON ROTHBARD KARL T. FIELDING College of William andMary Various members of the academic community not the existentially ultimate arbiters - that is, have attempted to attack Murray Rothbard's the people who compose the society - but the political and economic theories. One attempt institutional arbiters - the free market courts. made by H. E. Frech I11 in "The Public Choice Rothbard contrasts the free market judiciary's Theory of Murray N. Rothbard, A Modern decision procedure with the state judiciary's Anarchist" is quite disappointing in that it deals decision procedure. In the free market, two very superficially with many important areas of decisions pronounced by competing courts Rothbard's work. This paper, however, will could constitute the accepted legal cutoff point. examine only one of Frech's perfunctory crit- This deviates sharply from governmental proce- icisms - his charge that Rothbard's theory of dures in which there is one final decision the stateless society is self-contradictory. The pronounced by a single court. In short, reasonableness of Frech's arguments will be Rothbard praises the institutional arrangements determined. of the anarcho-capitalist judiciary as superior to The criticism which Frech levels against those of a government judiciary. Clearly, this is Rothbard's exposition of the stateless society is the context in which Rothbard speaks of that of self-contradiction. Frech states that anarcho-capitalism as having no final arbiter. according to Rothbard, "A single, ultimate The emphasis which Rothbard places on an arbiter of conflicts (e.g. the US. Supreme institutional contrast to the exclusion of any Court) is considered non-essential"."' Frech concern with the populace qua arbiter is replies: "However, as we shall see, Rothbard's justified. It is self-evident that all judicial own model of a voluntary society contains such decisions - whether pronounced by state judges a final arbiter."i'l Frech contends that Roth- or by free market judges - are effective defacto bard's implicit assumption of a final arbiter only if they are not actively opposed by a underlies his entire discussion of anarcho- significant portion of the population. Any capitalist society. Its final arbiter is the collec- decision would be rendered operationally mean- tion of individuals that comprise the society. ingless if the populace considered it so odious as Rothbard's own statements appear to lend to refuse to abide by it. It is important to note credence to Frech's criticism. In explaining the that the possibility that such opposition could operation of a free market nonmonopolistic occur in any society - anarchistic or govern- judiciary, Rothbard maintains that when the mental - is not unlikely. Thus, it is evident that courts rule according to the established proce- the existentially final arbiter, i.e. the final dure, the resultant decisions " . may 'then be existing arbiter, in any type of society is its taken by the society (italics added) as bind- component individuals. The people judge the ing"'.l2I Frech infers that since society must desirability and determine the effectiveness of accept both the procedure and the decision for all judicial edicts. Since both governmental and them to be binding, society is the ultimate arbiter anarcho-capitalist systems share this character- in anarcho-capitalism. This is an incorrect istic it is hardly appropriate for Frech to make inference, however, since Rothbard's statement this attribute a point of contrast between them. is quoted out of context. If a contrast is to be made, some unshared The arbiters about which Rothbard writes are aspect must be used. Therefore, Rothbard is 180 KARL T. FIELDING justified in dealing with their respective institu- supply of defence services but it is not a model of a tional frameworks - for this is a basis on which slateless society. the two systems can be contrasted. And it is within this context that Rothbard uses the term The criticism, in short, is that the populace in "arbiter". Rothbard's society constitutes a government in It is possible, however, that Frech regards and of itself. Frech's sole criterion in deter- "society" as an institution in its own right. mining whether a government exists is the "However, the agent which applies this law presence of a monopoly of force - no matter when there is a dispute is 'society', which acts how unorganized this monopoly may be. By when two courts agree, and accredits legitimate logical extension, however, one may also con- courts, or decides how to initially allocate sider a government's citizenry as constituting a property on the basis of Rothbard's principle of government in and of itself. As I have shown first use." Does Frech anticipate my argument earlier, it stands to reason that even the most above and attempt to render it impotent by oppressed citizenry could plague a government considering society as an anarcho-capitalist with resistance. The populace could effect the institution? I doubt it, but, nevertheless, I will downfall of the constituted government by its explore that possibility. own efforts. The citizenry is the ultimate judge I find that Frech's suggestion is unwarranted. of whether a given social system should exist, Acceptance of, or at least, passiveness toward and by virtue of having this power, possesses a the institutions and procedures of a society are de facto monopoly of force. necessary preconditions for the existence of that Does it make sense to speak of a nation as society. The recognition of decisions that result consisting of two governments? Only if one from certain procedures as binding is not a accepts Frech's definitions as reasonable. The characteristic unique to Rothbard's system, reason why we do not normally speak in such a but is a necessity for any system. This manner is because when we speak of govern- necessity constitutes the very foundation upon ments, we usually refer to governments qua which the particular institutions of a social institutionalized entities. Likewise, when Roth- system rest. The fact that the survival of bard writes about governments he refers to institutions is dependent upon the existence of governments qua institutions - regularized, these preconditions demonstrates sufficiently legalized and institutionalized channels for that the preconditions cannot themselves consti- aggression. Frech takes Rothbard's argument tute a separate institution within that society. out of its proper context when Frech uses differ- Thus, Frech's construing society as a separate ent criteria in identifying governments. The institution which accredits the law, the courts, populace does have an existential monopoly of and the principle of first use with legitimacy, force, but it does not have an institutionalized, when, in fact, such accreditation is the necessary regularized and legalized monopoly of force, If precondition of the system itself, does not Frech wishes to criticize Rothbard's society on withstand logical analysis. the ground that it is not really stateless, then it is Continuing his critique of Rothbard's state- incumbent that Frech demonstrate that claim less society, Frech utilizes a different ap- within the context of Rothbard's argument. proach. He now argues that an anarcho- Otherwise, Frech has no logical grounds on capitalist society is not really stateless. which to base his assertion that contradictions exist within Rothbard's theory, Rothbard's society is simply an unorganized group of Frech's criticisms are flagrant examples of individuals who threaten to use force against anyone context-dropping. Frech attacks Rothbard's who violates a widely held principle or interpretation. Further, this group has a monopoly in the sanctioning theory of the stateless society as self-contradic- or use of force. Although this group is unorganized and tory by using two different approaches. First, may vary in composition according to the issue at hand. while Rothbard claims that anarcho-Capitalism it meets the definition of a government. Professor Rothbard has provided us with a highly imaginative has no monopolistic final arbiter, Frech model of a civilization which has no monopoly in the contends that the individual members of the STATELESS SOCIETY: FRECH ON ROTHBARD 181 society are in themselves the final arbiters. The only alternatives open to Frech if he wishes Second, while Rothbard asserts that his system to criticize validly Rothbard's theory are either is stateless, Frech replies that the populace in to argue using Rothbard's context as a context- themselves constitute a government by virtue of ual framework or else to attack the context their possession of a monopoly of force. Both of altogether. these approaches are based upon context- dropping and, therefore, are invalid. In NOTES addition, any rejoiner maintaining that the 1. Frech, H.E., 111. "The Public Choice Theory of Murray people themselves constitutes an anarcho- N. Rothbard, A Modern Anarchist," Public Choice, capitalist institution has been found to be vol. 14 (Spring 1973). pp. 143-154. 2. Rothbard, Murray N. Power ond Marker: Government invalid. Rothbard's arguments have withstood and the Economy (Menlo Park, Calif.: Institute for Frech attacks regarding their inner integrity. Humane Studies, Inc., 1970). .
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