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Home , Alexander Berkman, Individualism, Josiah Warren, Lysander Spooner

LYSANDER SPOONER, , AND

by

edward john skrod

A Thesis Submitted to the Faculty of

The Wilkes Honors College

in Partial Fulfillment of the Requirements for the Degree of

Bachelor of in Liberal Arts and Sciences

with a Concentration in

Wilkes Honors College of

Florida Atlantic University

Jupiter, Florida

May 2011

i

LYSANDER SPOONER, LIFESTYLE ANARCHISM, AND JURY NULLIFICATION

by

edward john skrod

This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Daniel R. White, and has been approved by the members of his supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences.

SUPERVISORY COMMITTEE:

______

Dr. Daniel R. White

______

Dr. Christopher Strain

______

Dean, Wilkes Honors College

______

Date

ii

ABSTRACT

Author: edward john skrod

Title: Lysander Spooner, Lifestyle Anarchism, and Jury Nullification

Institution: Wilkes Honors College of Florida Atlantic University

Thesis Advisor: Dr. Daniel R. White

Degree: Bachelors of Arts in Liberal Arts and Sciences

Concentration: Philosophy

Year: 2011

Individual anarchism, a social movement of the early nineteenth century, was founded on the principles of self-sovereignty and . One such anarchist, Lysander Spooner, argues in “Vices are not Crimes” that vices should not be criminalized by the . To do so, “deprive*s+ every man of his… to pursue his own happiness.”1 I argue that Spooner’s essay lays the foundation for “lifestyle anarchism,” the doctrine that all the affairs of human within the domain of their lifestyle choices (provided they do not harm the person or of another), should be managed by or voluntary associations.

One method of resistance against the criminalization of lifestyle choices is jury nullification: the ability of the jury to return a verdict of “not guilty” despite evidence of guilt. Spooner, in An Essay on the Trial by Jury, argues that nullification can be used to resist oppressive . I contend that lifestyle anarchists should support efforts by organizations such as the Fully Informed Jury Association to educate the public of their ability to practice jury nullification.

1 Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org, http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch. 13.

iii

TABLE OF CONTENTS

Introduction………………………………………………………………………………………………………………… 1

Chapter 1 …………………………………………………………………………………………………………………. 11

Chapter 2

Section I………………………………………………………………………………………………………… 21

Section II……………………………………………………………………………………………………….. 28

Chapter 3 …………………………………………………………………………………………………………………. 41

Conclusion ……………………………………………………………………………………………………………….. 62

Appendix I: A Direction for Further Research - in an Anarchistic ……………. 65

Works Cited ……………………………………………………………………………………………………………… 77

iv

Introduction

Unless [a] clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and coequal of another man to the control of his own person and property.

For a to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare to be falsehood, or falsehood truth.2

Writing within the of American individual anarchism, nineteenth century legal theorist, lawyer and abolitionist Lysander Spooner makes a compelling argument in

“Vices are Not Crimes: A Vindication of Moral Liberty” against a government’s right to punish individuals for their so-called vices.3 Vices, according to Spooner, are those

“errors which a *person+ makes in his search after his own happiness” which “imply no malice toward others, and no interference with [another+ person or property,” while crimes are “those acts by which one *person+ harms the person or property of

2 Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org, http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch 1.

3 For the purpose of this essay, I follow in the footsteps of David Friedman, who defines government as “an of legitimized coercion…. ‘[C]oercion,’ for the purposes of this definition,[is] the violation of what people in a particular society believe to be the rights of individuals with respect to other individuals.” “The Machinery of : Guide to a Radical (excerpt)” in and the Law, ed. Edward Stringham, 40-56 (New Brunswick: Transaction Publishers, 2007), 40.

1 another.”4 Spooner’s argument for moral liberty outlined in “Vices are Not Crimes” forms the basis for what I have deemed “lifestyle anarchism,” the idea that in the matter of vices, most of which have to do with an individual’s lifestyle, (such as recreational drug use, prostitution, sodomy, gambling, seatbelt laws, and the like), the individual has no to and, furthermore, when governments intervene in this domain, they should be resisted at every turn. If anarchism, as vociferous proponent exclaimed, is “the doctrine that all the affairs of men should be managed by individuals or voluntary associations, and that the State should be abolished,” then lifestyle anarchism might be described as the doctrine that all the affairs of human beings within the domain of their lifestyle choices, whether virtuous or vicious, and provided they harm not the person or property of another, should be managed by individuals or voluntary associations, and that the State should its own business.5

Furthermore, when the State criminalizes lifestyle choices, it ought to be resisted.

The question is, “how?” How might individuals oppose the State’s laws? Spooner’s

1852 essay on the rights of juries, titled “Trial by Jury,” provides one such course of action:

4 Spooner, "Vices Are Not Crimes,” Ch. 1.

5 Benjamin Ricketson Tucker, Instead of a Book, The Right Wing Individualist Tradition in America, (New York: Arno Press, 1972), 9.

2

In criminal cases, it is not only the right and duty of juries to judge what are the , what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.6

According to Spooner, the jury has the historically constituted legal and moral to acquit the accused based upon their judgment of the law even when it is evident that the defendant has broken it. The name for this practice is “jury nullification.”

Condemned by the courts since the late nineteenth century, jury nullification, in the manner described in Trial by Jury, can and ought to be used as a tool to resist the

State’s criminalization of lifestyle choices.

The history of jury nullification in the bears consideration. Until the

1895 Supreme Court case, Sparf v. United States, the right and duty of juries to judge both the facts and the justice of the law of a criminal case was widely recognized.7 The

Sparf case narrowed the role of the jury to the judgment of only the evidence in a case.

The jury was relegated to a nominal -finding role.8 Indeed, in the eighteenth and early nineteenth centuries, it was “commonly accepted that a defendant had the right to a jury which both found facts and determined where the law should apply.”9 One

6 Spooner, “Trial by Jury (excerpt),” 484. Emphasis in original.

7 Sparf v. US, 156 U.S. 51 (1895).

8 Arie M Rubenstein, "Verdicts of : Nullification and the Modern ," Columbia Law Review 106, no. 4 (2006): 959.

9 Rubenstein, “Verdicts of Conscience,” 959.

3 need only look to the 1794 Supreme Court case of The State of Georgia v. Brailsford, to find an example of the court’s prior approval of jury nullification.10 With the concurrence of all judges on the court, Chief Justice John Jay wrote:

It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable rule of distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and determine the law as well as the fact in controversy…. [B]oth objects are lawfully within your power and decision.11

The Sparf decision, however, reversed this tradition by a margin of seven to two. The

U.S. Supreme Court voted to uphold a conviction in a case whereby the trial judge refused the defense attorney’s request to inform the jury of their nullification power.

Spooner’s contention in Trial by Jury is that such a reversal of tradition results in government oppression. According to Spooner, “unless such be the right and duty of jurors, it is plain that, instead of juries a ‘palladium of liberty’ --- a barrier against the tyranny and oppression of the government --- they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have

10 The State of Georgia v. Bradford, 3 U.S. 1 (1794).

11 The State of Georgia v. Bradford, 3 Dubois, 1, p.4; quoted in Isaac Grant Thompson, The Albany Law Journal. Vol. VIII. (Albany: Weed, Parsons & Co., 1874), 203.

4 executed.”12 The jury with the power to nullify is a jury that can check the power of a tyrannical state and serve “as a safety valve against unjust application of the law.”13

It is my contention that the current criminalization and subsequent prosecution of certain lifestyle choices considered vicious and deemed illegal should be opposed at the level of the jury through the use of jury nullification. The question of whether resistance to state power in the realm of lifestyle choices should be extended to more substantive issues of , civil rights, and is a fascinating one that I must defer to a later study.

Spooner’s opinions and writings can be situated within the purview of American individual anarchism in the tradition of notable nineteenth century individual anarchists

Josiah Warren and Benjamin Tucker. Born out of the triadic interactions among

Protestantism, American capitalism and an individualism animated by an expansive physical territory, the American Anarchistic tradition, or what David De Leon has deemed “indigenous ,” is uniquely American.14 This tradition is hostile toward the centralized state, “reject*ing+ all theories of , all theories in which there is a notion that [human beings] contract out certain in return for

12 Spooner, “Trial by Jury (excerpt),” 484.

13 Rubenstein, “Verdicts of Conscience,” 973.

14 For more on the conditions that led to the creation of American individual anarchism, see David DeLeon, The American as Anarchist: Reflections on Indigenous Radicalism, (: Johns Hopkins University Press, 1978).

5 prearranged guarantees that the State renders.”15 Anarchists reject theory and claim that it is a myth and a pervasive , the purpose of which is to maintain the authority of the State.16

Individual anarchism assumes “an intimate link between personal freedom and property” in the Lockean tradition.17 Individual anarchists part ways with Locke, however, in the necessity of the state to preserve property. They “praise ‘the market’ as self-sufficient, and censure government for disturbing or constraining the natural liberty of individuals and voluntary associations.”18 It is not authority, per se, that individual anarchists criticize, but rather, the monopolized of force, i.e. the State, which is a coercive form of authority.19

According to Freidman’s definition of government in terms of coercion, the State

“claims and exercises the monopoly of crime… It forbids murder, but itself organizes

15 Irving Louis Horowitz, "A Postscript to the Anarchists," The Anarchists, (New Brunswick: Aldine Transaction, 2005), 583.

16 Horowitz, "A Postscript to the Anarchists," 583.

17 David De Leon, The American as Anarchist: Reflections on Indigenous Radicalism, (Baltimore: Johns Hopkins University Press, 1978), 61. For Locke’s conception of property, please see and Peter Laslett, Two Treatises of Government, Student ed., Cambridge Texts in the History of Political Thought, (Cambridge: Cambridge UP, 1988), 287-302, especially ¶27-28.

18 DeLeon, The American as Anarchist, 61.

19 Authority can and is voluntarily submitted to. I’m thinking, for example, of the voluntary formation of a club and subsequent election of club officers to positions of authority.

6 murder on a colossal scale.20 It punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or of alien.”21 It is the

“organization in society which attempts to maintain a monopoly of the use of force and violence in a given territorial area… obtain*ing+ its revenue not by voluntary contribution or payment for services rendered but by coercion.”22 Benjamin R. Tucker (1854-1939), considered the State and the monopolies it supports the principle targets of individual anarchism. With the abolition of the State, “the most offensive evils of the capitalistic system” such as “monopoly, privilege, and inequality, originating in the lack of opportunity” would be kept in check.23

Individual anarchism has made a rich contribution to the domain of American letters, from ’s weekly periodical The Peaceful Revolutionist, published in

1833,24 to Murray N. Rothbard’s call for a radical alternative to state power in his 1973

20 See supra p. 1, n. 3, for Friedman’s definition of government.

21 , On Doing the Right Thing, and Other Essays, (New York: Harper and Bros., 1921), 143; quoted in Murray N. Rothbard, The Anatomy of the State, (New York: Libertarian-Anarchist Book Service, 1974), 16.

22 Rothbard, The Anatomy of the State, 16.

23 Eunice Minette Schuster, Native American Anarchism: A Study of Left-Wing American Individualism, Smith College Studies in History, (New York: AMS Press, 1970), 159. For more information on the economics of individual anarchism, please see Benjamin Ricketson Tucker, "State and Anarchism: How Far They Agree and Wherein They Differ," in Instead of a Book, 3-18, (New York: Arno Press, 1972), and Josiah Warren, Practical Details in Equitable Commerce, (New York: Fowlers and Wells, 1852), and more recently Murray N. Rothbard, : The Libertarian Manifesto, (New York: Collier Books, 1978).

24 Schuster, Native American Anarchism, 97-98.

7 book, For a New Liberty: The Libertarian Manifesto. Lysander Spooner was one such radical, named after “the admiral of who destroyed the Athenian fleet, ending the Peloponnesian War.”25 Born , 1808 into a of ardent abolitionists,26

Spooner began studying the law in 1833 under the tutelage of John Davis (1787-1854), a lawyer, governor, United States Senator and member of the Whig party.27 According to

Charles Shively in The Collected Works of Lysander Spooner, Davis spent most of his time out of the office, so Spooner most likely learned “most of his law from distinguished jurist, Charles Allen (1797-1869),” a state senator who later “served many years as Chief

Justice of the Supreme Court.”28 The mark of Davis and Allen’s influence on Spooner is evident. Both men were fiercely against , “conservative, judicious, and above all, rigorously logical.”29 Although Spooner’s intellectual heritage began in the office of these two men, his thought took a radical turn toward individual anarchism as he grew older and began to practice law.

It is because Spooner is best identified as an American individual anarchist that my initial focus be on those ideas and expressions that constitute the American

25 Lysander Spooner and Charles Shively, The Collected Works of Lysander Spooner, 6 vols. (Weston: M & S Press, 1971), 1:15.

26 Spooner and Shively, The Collected Works of Lysander Spooner, 1:16.

27 Ibid., 1:17.

28 Ibid.

29 Ibid.

8 tradition of individual anarchism. In chapter one, I survey the philosophy’s tenets as exemplified by its founder Josiah Warren, specifically those ideas that Warren gleaned from his time with at New Harmony, such as the then radical principle of self-sovereignty which was borrowed by for use in his seminal work, On

Liberty.30

Having established the general doctrine of individual anarchism in chapter one, in chapter two I turn to Lysander Spooner’s “Vices are Not Crimes: A Vindication of Moral

Liberty.” In the essay, Spooner argues that a States’ criminalization of vices is unjust and oppressive. Spooner’s argument in “Vices are Not Crimes” forms the foundation for lifestyle anarchism. Having accepted the argument in “Vices are not Crimes,” I turn to

Spooner’s Trial by Jury, which provides a to resist oppressive, State- imposed legislation by means of jury nullification. Nullification of bad laws by the people is the ultimate expression of self-sovereignty and Trial by Jury outlines a juridical method of resistance to unjust laws.

Although jury nullification has become more popular in recent years among academics and jurors, it remains a “highly controversial phenomenon” condemned by the courts and the press.31 For example, persons sympathetic to nullification can be removed from the pool of potential jurors during voir dire, the process by which trial

30 See supra 14, notes 49 and 50.

31 Rubenstein, “Verdicts of Conscience,” 960. See also Joan Biskupic, “In Jury Rooms, a Form of Civil Protest Grows,” Washington Post, February 8, 1999.

9 judges and counsel interview potential jurors for suitability.32 Jurors suspected of nullifying during a criminal trial have been held in contempt of court, arrested, and imprisoned. Defense attorneys are also held in contempt as judges forbid arguments made on behalf of nullification.33 Is there a way to implement nullification in the modern jury trial despite such condemnation? In chapter three, I present two different methods for reintroducing nullification into the criminal justice system. The first proposal is made by Arie M. Rubenstein, a lawyer and legal theorist who suggests a simple procedural change to the modern trial. Although I am sympathetic to

Rubenstein’s suggestion, I conclude that lifestyle anarchists should concentrate their efforts in the support of educational organizations such as the Fully Informed Jury

Association (FIJA), a “nonpartisan public policy research and education organization.”34

Its mission is “to educate regarding their full powers as jurors, including their ability to rely on personal conscience, to judge the merit of the law and its application, and to nullify bad law, when necessary for justice, by finding for the defendant.”35

32 Rubenstein, “Verdicts of Conscience,” 986.

33 Ibid., 988.

34 "Fully Informed Jury Association – Purpose," Fully Informed Jury Association, http://fija.org/about/fijas-purpose/, (accessed April 25, 2011).

35 Ibid.

10

Chapter One

It is a very easy matter to tell who is an Anarchist and who is not. One question will always readily decide it. Do you believe in any form of imposition upon the human will by force? If you do, you are not an Anarchist. If you do not, you are an Anarchist.36

American individual anarchism was founded in the nineteenth century by Josiah

Warren, publisher of the first anarchist paper, the Peaceful Revolutionist, and founder of the first anarchist colonies, Utopia and Modern Times.37 In 1824, Warren attended a lecture by the famous social reformer and founder of socialism, Robert Owen. Owen spoke of founding “an ideal community which would eventually embrace all mankind.”38

Upon hearing Owen speak, Warren moved his family to New Harmony, Indiana.

Although ultimately failing as a utopian society, New Harmony managed to produce

America’s first anarchist, Josiah Warren.39

From Owen and his at New Harmony, Warren derived two important ideas which became the foundation of individual anarchism. First, “with Owen, he

36 Tucker, Instead of a Book, 111.

37 Schuster, Native American Anarchism, 92.

38 Ibid., 93.

39 Ibid., 93.

11 believed… that the ‘emancipation of man’ was possible and human happiness only a question of suitable social adjustment to be secured by the incorporation of true principles.”40 Individuality was one such principle and became the foundation of

Warren’s philosophy explicitly because of his observations resulting from the failings of

New Harmony. After having witnessed ‘the inadequacy of to correct the evils of and the both of paternal authority and majority rule as forms of government,” Warren realized that the chief causes of the at New

Harmony were “the suppression of individuality” and the “lack of initiative and responsibility.”41 All decisions made for the “good” of the community were either made by Owen or by the will of the majority.42 This decision-making resulted in both the disparagement of individual liberty and the ascription of the system’s faults to “the shortcomings of... neighbors.”43 Individual liberty, he thought, was at the root of all future reform, for “man seeks freedom as the magnet seeks the pole or water its level, and society can have no until every member is really free.”44 In order for every person to be free, her sovereignty, or right to rule over herself, should not be infringed.

Each person should be free to use her time, her property and her person as she

40 Schuster, Native American Anarchism, 94-95.

41 William Bailie, Josiah Warren, the First American Anarchist; a Sociological Study, (: Small, Maynard & company, 1906), 5-6, http://books.google.com/, (accessed April 10, 2011).

42 Baile, Josiah Warren, the First American Anarchist, 6.

43 Ibid.

44 Ibid., 7.

12 pleases.45 Individuality and self-sovereignty, therefore, became foundational principles to Warren’s philosophy. According to Warren,

SELF-SOVEREIGNTY is an instinct of every living organism; and it being an instinct, cannot be alienated or separated from that organism. It is the instinct of Self-Preservation; the votes of ten thousand men cannot alienate it from a single individual, nor could the bayonets of twenty thousand men neutralize it in any one person any more than they could put a stop to the instinctive desire for food in a hungry man.46

Warren also held self-sovereignty to be inalienable, writing, that it “can never be wrested from the multitude, nor from a single individual… and to make the attempt to alienate it is one of the most fatal political ever attempted. A equally fatal is that of supposing that this deciding power can successfully be vested in a majority over a minority, or over a single person.”47 The instinct for self-preservation is

“its own authority, from which all [other ] are derived.”48

The doctrine of self-sovereignty became not only a foundational principle of individual anarchism, but was also borrowed “with due acknowledgment by John Stuart

Mill in his famous essay ‘[On] Liberty,’” forming the bedrock of his liberal political

45 Ibid., 7.

46 Josiah Warren, True Civilization an Immediate Necessity, and the Last Ground of Hope for Mankind, (Boston: J. Warren, 1863), 10. Emphasis in original.

47 Warren, True Civilization, 129-130.

48 Ibid., 131.

13 philosophy.49 Indeed, in his autobiography, Mill stated that he “borrowed from the

Warrenites their phrase, the sovereignty of the individual.”50

The second important idea Warren learned from Owen and the experiment at New

Harmony is the idea that “utility *is+ the true measure of and happiness the true end of life.”51 If utility is the measure of virtue, then turning the State’s notion of vice on its heels, one can charge the State itself of viciousness. According to Warren, governments, “under the plausible pretext… of protecting person and property… have spread wholesale destruction, famine, and misery all over the earth where peace and security might otherwise have prevailed…. They have shed more blood, committed more murders, tortures, and crimes in struggles against each other for the privilege of governing than society would or could have suffered in the absence of all governments

49 Bailie, Josiah Warren, the First American Anarchist, 99.

50 Ely, Richard T. "Review: [Untitled]." The American Political Science Review 2, no. 1 (1907), 126.

51 Schuster, Native American Anarchism, 95. Although Schuster does not explicitly define “utility” according to that of John Stuart Mill, I infer the word “utility” to be so defined. See J.S. Mill, , (London: Parker, son, and Bourn, 1863), http://google.books.com/. (accessed May 20, 2011). (Mill combines the purely hedonistic utilitarian calculus of Bentham where utility is “ itself, together with exemption from pain,” with the Aristotelian notion of virtue which “assign to the of the intellect, of the feelings and imagination, and of the moral sentiments, a much higher as pleasures than to those of mere sensation.” *Mill, Utilitarianism, 8, 11.+ The statement, “utility is the measure of virtue,” understood according to Mill, most likely means that the more happiness that is produced by an act, the more virtuous the act and vice versa. The question is whether “happiness” should be construed as a social good or an individual good. Given that Warren and the other individual anarchists of his time place self-sovereignty and individualism as foundational principles, I find it likely that utility, taken in this context, should be regarded as individual happiness as opposed to social happiness. This point is important because Spooner, in Vices are Not Crimes, finds the between a vice and a virtue as simply the difference “between the objects’ utility.”)

14 whatever!'"52 Therefore, governments, having “spread wholesale destruction,” lacked virtue, measured by utility, and prevented true human happiness.

To the individual anarchists, all “to which the name ‘State’ has been applied,” have two common characteristics, the first of which is that of .53

According to “the chief formulator of individual anarchism,”54 Benjamin R. Tucker,

aggression, is simply another name for government. Aggression, invasion, government, are interconvertible [sic] terms. The essence of government is control, or the attempt to control. He who attempts to control another is a governor, an aggressor, an invader; and the nature of such invasion is not changed, whether it is made by one man upon another man, after the manner of the ordinary criminal, or by one man upon all other men, after the manner of an absolute monarch, or by all other men upon one man, after the manner of a modern .55

The of individuality and self-sovereignty “preclude… the invasion of one person by another, or of one body of people by another, even a majority, albeit the invader designates itself Society *or+ the Government.”56 The State exemplifies aggression as it maintains a monopoly on the use of force and thus maintains the right to violate individual liberty, a right not available to anyone else.

52 Josiah Warren, “The Crimes of Governments,” in The Blast, edited by Barry Pateman, and . (Edinburgh: AK Press, 2005), 91.

53 Tucker, Instead of a Book, 22.

54De Leon, The American as Anarchist, 65.

55 Tucker, Instead of a Book, 23.

56 Bailie, Josiah Warren, the First American Anarchist, 99.

15

The second common characteristic of the state is “the assumption of sole authority over a given area and all within it, exercised generally for the double purpose of more complete oppression of its subjects and extension of its boundaries.”57 In other words, the State is the institution with a monopoly of violence (or aggression) over a given territory. The State maintains this territory by the use of force, disallowing its citizens to withdraw their and their property from its domain.

The powers of any state are considered crimes against individual liberty by most individual anarchists for three important . First, the powers are “not based upon valid contracts…. *T+he present should not be bound by the agreements of the past.

Specifically, *in the case of the United States’ Constitution,+ since all of those who had signed the Constitution were now dead, this moldy document should be null and void.

[The Constitutional contract] violate[s] the supremacy off the present.”58 Secondly, the

State confers privileges to those and individuals with whom it is connected.

These privileges take the forms, for example, of “monopolies in patents, copyrights, legal benefits, limited banking, land restrictions, and tariffs.”59 When the State grants privileges such as those mentioned above, the side effect is that it creates an unequal

57 Tucker, Instead of a Book, 22.

58 DeLeon, The American as Anarchist, 76. See Lysander Spooner, "No Treason: The Constitution of No Authority," (1867), http://lysanderspooner.org/node/44, for his argument against the of the United States’ Constitution.

59 DeLeon, The American as Anarchist, 76.

16 playing field for those individuals and companies that are not connected to it.60 Thirdly,

“the state [is] unjust because people were never given the choice of accepting or rejecting its powers.”61 This third is an explicit rejection of the contract theory of political obligation which is common to traditional . Political obligation is the idea that the individual, by virtue of her consent, whether explicit or not, has an obligation to respect and obey the laws and edicts of the State. The contract theory of political obligation states that a contract was made, actually or tacitly, between all persons forming a society in a given territory which resulted in the formation of the State. Rousseau, for example, held that the State “originated in a contract, and that the people of to-day [sic], though they did not make it, are bound by it.”62 Anarchists “deny that any such contract was ever made or assumed ” and even if it had been made or assumed at some earlier point of human history, “it could not impose a shadow of obligation on those who had no hand in making it.”63 Therefore, the

60 Ibid.

61 Ibid.

62 Tucker, Instead of a Book, 33. For examples of arguments for political obligation by virtue of implicit consent, please see A.D.M. Walker, “Political Obligation and the Argument from Gratitude,” Philosophy and Public Affairs, 17, 191-211, and , “Legal Obligation and the Duty of Fair Play,” Law and Philosophy, ed. S. Hook, (New York: New York University Press, 1964). For a rebuttal, see A. John Simmons, “Gratitude,” in Moral Principles and Political , (Princeton, N.J.: Princeton University Press, 1979), 158 – 90, and A. John Simmons, “The Principle of Fair Play” and “Fair Play and Political Obligation: Twenty Years Later” in Justification and Legitimacy: Essays on Rights and Obligations, (Cambridge: Cambridge University Press, 2001), 1-42.

63 Tucker, Instead of a Book, 33.

17

“inherent rights and duties” are not obligations unless they have been “consciously and voluntarily assumed.”64

Although Warren would not deny the “necessity for restraining criminals and preventing aggression” against persons and property, “it is easy to show that the State proves itself incompetent and uncertain in this its own prescriptive field…. Its function can be carried out with greater efficiency and by a system of free association, a kind of protective insurance.”65 According to the ideas of individual anarchism, all business now carried on by government activity should be free to be conducted by voluntary, non-compulsory, agencies, or by private enterprise."66 To the individual anarchists, the protection of property, the persecution of criminals and administration of justice, defense, and education could be carried out in the same manner as “numberless difficult and socially necessary functions without subordinating the citizens to arbitrary power.”67

64 Ibid., 24.

65 Bailie, Josiah Warren, the First American Anarchist, 104. It is important to note that currently, so- called “private enterprise” is constituted under Federal and State laws, whereby corporate entities gain “individual rights.” This is hardly a “private sector” by Warren’s standards.

66 Bailie, Josiah Warren, the First American Anarchist, 104. For an in-depth critique of the governmental monopoly over the use of force and a speculative vision of the functionality of a voluntary, competitive, non-governmental system of law, courts and other so-called “public goods,” please see Anarchy and the Law: The Political Economy of Choice, Independent Studies in Political Economy, “Section One: Theory of Private Property Anarchism,” ed. Edward P. Stringham, (New Brunswick: Transaction Publishers, 2007), 1-192.

67 Bailie, Josiah Warren, the First American Anarchist, 104.

18

From the idea of individual sovereignty follows what Warren has deemed “the freedom to differ.” According to Warren, “opposition to *the absolute right of self- sovereignty] is as harmless as would be the pelting a beggar with gold! itself not being antagonistic, but coinciding with it, who can avoid being in harmony with it practically, whatever he may be theoretically?”68 For “*e+ven the denial of it illustrates and confirms it.”69 Therefore, because dissent is actually in agreement with the notion of self-sovereignty, there is a “harmonic warrant for [the] FREEDOM TO DIFFER – a point never otherwise attained in human affairs.”70

The individual anarchists’ precepts of individuality, self-sovereignty, utility as a measure of virtue, and the freedom to differ, all together shape and affirm the anarchistic moral code – “mind your own business.” 71 According to Tucker,

“interference with another’s business is a crime and the only crime, and as such may properly be resisted.”72 Therefore, the use of force by governments to suppress vices,

(defined in Spoonarian terms as “the errors which a *person+ makes in his search after

68 Warren, True Civilization, 143.

69 Ibid.

70 Warren, True Civilization, 143.

71 Benjamin Ricketson Tucker, " and Anarchism: How Far They Agree and Wherein They Differ," in Instead of a Book, 3-18, (New York: Arno Press, 1972), 15.

72 Tucker, “State Socialism and Anarchism,” 15.

19 his own happiness”), is itself a criminal act.73 The individual anarchists view liberty as the panacea to ’ ills and “recognize the right of the drunkard, the gambler, the rake, and the harlot to live their lives until they shall freely choose to abandon them.”74

Human beings must be allowed to decide for themselves in all matters, “even in so delicate a matter as that of the relations of the sexes.”75 Anarchists defend and uphold voluntary associations of any sort, accepting associations between members of any sex or number of partners. However, given their position on the State, it is no wonder that they consider “legal marriage and legal divorce… equal absurdities.”76

Ultimately, individual anarchism in general, and lifestyle anarchism in particular, can be summed up by founder Josiah Warren’s proclamation – a pronouncement echoed and elucidated by Lysander Spooner in “Vices are not Crimes” – “Freedom for you to do

(at your own cost or within your own sphere) what I may consider wrong, foolish, or inexpedient, is the vital principle of peace and all ; for your experiments may prove that you are right.”77

73 Spooner, "Vices Are Not Crimes," Ch. 13.

74 Tucker, “State Socialism and Anarchism,” 15.

75 Ibid., 15.

76 Ibid., 15.

77 Warren, True Civilization, 144.

20

Chapter 2

Section I

The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have --- consistently with the equal rights of others --- to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property. On the other hand, the object aimed at in the punishment of vices, is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property.78

Lysander Spooner’s essay, “Vices are Not Crimes: A Vindication of Moral Liberty,” attempts to make a clear distinction between those acts that are “immoral” and those that are “illegal.” Immoral or vicious actions are defined, at the beginning of the essay, as “the errors which a *person+ makes in his search after his own happiness” which

“imply no malice toward others, and no interference with their persons or property.”79

Vices are juxtaposed against crimes, which Spooner defines as “those acts by which one man harms the person or property of another.”80 According to Spooner, a person who commits a vice has no criminal intent and does not purposefully encroach upon

78 Spooner, "Vices Are Not Crimes," Ch. 13.

79 Ibid., Ch. 1.

80 Ibid.

21 another’s person or property.81 To criminalize vice, therefore, is to “falsify the very nature of things.”82

Spooner’s essay is a mere twenty-two chapters, each chapter consisting of two or three short paragraphs. Having established the definitions of vices and crimes in the first chapter, he demonstrates in the next twenty-one, generally speaking, the difficulty of distinguishing between virtue and vice. Additionally, he affirms that it is up to the individual and not an authority or government, to determine which of her acts are vicious or virtuous. Indeed, the very idea that actions are virtuous or vicious is called into question by Spooner who notes that in many cases, differences between the two are merely a matter of difference, temporality or degree.

According to Spooner, every human action tends either toward or against happiness.83 However, because every human being is different and has a right to be different, actions that tend toward happiness in one individual () may tend toward unhappiness in another person (vices).84 Similarly, acts that tend toward happiness in a person at one time can also tending toward unhappiness in the same

81 Spooner, "Vices Are Not Crimes,” Ch. 1.

82 Ibid.

83 Ibid., Ch. 2.

84 Ibid.

22 person at a different time.85 The point Spooner is trying to make is that some virtues are indistinguishable from vices for different people at different times.

Furthermore, as humans, we are continually driven to study the very things that make us happy or unhappy. Spooner calls this behavior the “constant study to which each and every *person+ … is necessarily driven by the desires and necessities of his own .”86 The study of virtues that lead to happiness, therefore, is uniquely personal.87 Each person “must necessarily form his own conclusions; because no one else knows or feels, or can know or feel, as he knows and feels, the desires and necessities, the hopes, and fears, and impulses of his own nature, or the pressure of his own circumstances.”88 Each person, therefore, must be able to judge for himself what makes him happy or not, for only the individual is capable of deciding this, for himself.

Moreover, more often than not, the difference between virtue and vice is a matter of “quantity and degree,” adding “to the difficulty, not to say the impossibility, of any one’s – except each individual for himself – drawing any accurate line… between virtue and vice.”89 Thus, if the freedom to experiment, “to inquire, investigate, reason,…

85 Ibid.

86 Ibid., Ch. 3.

87 See supra p. 14, n. 51 for an explanation of utility, understood in individualistic terms, as Spooner would likely interpret it.

88 Spooner, "Vices Are Not Crimes,” Ch. 3.

89 Ibid., Ch. 4.

23 judge, and ascertain” what constitutes virtue or what constitutes vice, is deprived to each individual by the coercive acts of government, then the very right to “’liberty and the pursuit of happiness, is denied” as well.90

The fundamental idea at which Spooner is driving is that each person must be free to learn for herself.91 Any denial of this right by authorities, by those who claim to know better, is the height of arrogance and a violation of human liberty. According to

Spooner, “to learn it, he must be at liberty to try all experiments that commend themselves to his judgment. Some of his experiments succeed, and, because they succeed, are called virtues; others fail, and because they fail, are called vices.”92

Spooner’s claim is consistent with Warren’s idea that “utility is the true measure of virtue.”93 The difference between virtue and vice is simply a matter of the object’s utility and is one more reason for preventing coercive authority from determining what is virtuous and what is vicious. However, even if it were possible for authority to determine what actions are virtuous or vicious in general, Spooner would continue to object against coercion because, as noted above, that determination can only be accurately determined through self-study by each individual.

90 Ibid., Ch. 5.

91 Ibid., Ch. 6.

92 Ibid.

93 See supra 14, n. 51.

24

But what of an act that is repeatedly shown to be vicious, due to millennia of human trial and error? Should not the State or other authority prevent it from occurring?

Spooner vehemently disagrees with this suggestion, writing,

Who are the men who have the right to say, [we have tried this experiment, and determined every question involved in it? We have determined it, not only for ourselves, but for all others? As to all those who are weaker than we, we will coerce them to act in obedience to our conclusion?] Certainly there are none such. The men who really do say it, are either shameless impostors and , who would stop the progress of , and usurp absolute control over the and bodies of their fellow men; and are therefore to be resisted instantly, and to the last extent.94

In other words, no one can claim to know everything there is to know about a certain act, whether it tends toward happiness or toward misery in every conceivable case.

Those persons who claim such knowledge actually prevent the acquisition of knowledge.

Spooner’s next claim is that every human being has many vices and that for a government to be consistent, it would have to criminalize all of them which is an

“utterly impracticable” thing for it to do.95 Governments usually only propose to

“punish some one [sic], or at most a few, of what *they+ esteem… the grossest of them.”96 Of this decision by governments, Spooner asks, by “what right has any body

[sic] of men to say, ‘The vices of other men we will punish; but our own vices nobody

94 Spooner, "Vices Are Not Crimes,” Ch. 8.

95 Ibid., Ch. 11.

96 Ibid.

25 shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our own notions of it? We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary, to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness?’"97

The arguments against the State criminalizing so-called vices, in “Vices are Not

Crimes,” are the foundation for lifestyle anarchism. Choices made by individuals specifically relating to their chosen lifestyles, whether those lifestyles are virtuous or vicious, should not be illegal. Furthermore, if a vice is made illegal by the prevailing government, whether dictatorship or democracy, the law preventing it should be opposed. The question then, is how can lifestyle anarchists oppose laws regulating lifestyle choice? There are several methods of resistance that can be pursued by adherents of lifestyle anarchy, each having varying rates of success and failure, such as the formation of Political Action Committees (PACs) to influence legislatures or outright refusal to comply with the law, à la Thoreau’s .98

97 See supra 14, n. 51 for an explanation of utility and happiness, understood in individualistic terms, as Spooner would likely interpret it.

98 , “Civil Disobedience,” 1849, http://thoreau.eserver.org/civil.html, (accessed May 24, 2011). Thoreau’s essay is a response to being imprisoned for declining to pay the poll tax. The poll tax, he thought, contributed to a government that supported slavery. Thus, in 1846, Thoreau declined to pay the tax and was arrested and imprisoned for so doing. He was released after one night when a relative settled the debt without his knowledge or consent. (Wendy McElroy, “Henry David

26

One such form that has experienced a recent resurgence in popularity among the citizenry and academics, despite outright hostility by the judiciary and other agents of the State, is jury nullification - the right of the people to judge their own against the power of the government. Jury nullification can be used as a means to resist the

State’s interference within the domain of lifestyle choice. Lysander Spooner’s Trial by

Jury makes a persuasive argument that the jury has not only the ability but also the right to nullify oppressive laws.

Thoreau and ‘Civil Disobedience,’ Part 1,” Future of Freedom Foundation, July 25, 2005, http://www.fff.org/freedom/fd0503e.asp, accessed May 24, 2011).

27

Section II

The power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.99

Spooner’s book Trial by Jury was written in 1852, at a time when the historical right to judge the justice of law was under attack by the United States’ judiciary. The book can be seen as a reaction against what Spooner perceived to be an attempt to curtail the role of the jury. In the first note of chapter one in his book, he cites the following case as an example of this encroachment. In 1851, three men named Scott, Hayden, and Morris were charged with aiding in the rescue of an escaped slave from the custody of a United States deputy marshal.100 Their actions were in violation of the so-called

“Fugitive Slave Law” and their trial was heard in the United States District Court for the

District of Massachusetts.101 During the jury selection process, potential jurors were asked by the “United States district judge Peleg Sprague, in paneling three separate juries,” whether they were “prejudiced against the government.”102 Specifically, they were asked whether they “*held+ any opinions upon the of the Fugitive Slave law… which [would] induce [them] to refuse to convict a person indicted under it, if the

99 Lysander Spooner, “Trial by Jury (excerpt),” In Anarchy and the Law: The Political Economy of Choice, edited by Edward Stringham, 484-503. (New Brunswick: Transaction Publishers, 2007), 488.

100 Spooner, “Trial by Jury (excerpt),” 496, n. 1.

101 Ibid.

102 Ibid. Italics in original.

28 facts forth in the indictment, and constituting the offense, [were] proved against [the accused], and the court direct*ed+… that the law [was] constitutional?”103 The jurors were asked the aforementioned question separately from one another; “and those who answered unfavorably for the purposes of the government, were excluded” from serving on the jury.104

Jurors that held opinions against the Fugitive Slave law were summarily ejected from consideration for jury duty, ostensibly for . However, according to Spooner, the reason that the courts asked each potential juror the question was that the “Fugitive

Slave Law… was so obnoxious to a large portion of the People, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people.”105

The government, therefore, was not only deciding the ideology of the jury through the selection process, but was also effectually dictating the and constitutionality of the law. According to Spooner, “the only principle upon which these questions are asked, is this – that no man shall be allowed to serve as juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.”106

103 Spooner, “Trial by Jury (excerpt),” 496, n. 1. Italics in original.

104 Ibid.

105 Ibid.

106 Ibid., 497, n. 1.

29

The example also demonstrates that, at minimum, judges knew that jurors would nullify against their instructions, and were willing to eject potential jurors that found the law questionable. If not, there would be no need to question the potential jurors of their acceptance of the law or potential prejudice against the government.

In his opening chapter, Spooner writes, “it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right to judge the justice of the law and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”107

The right of nullification was enshrined in English common law during the Bushell case of 1670 and eventually came to inform American criminal trials. According to

Rubenstein, “Bushell, a juror who had voted to acquit two prominent Quakers of unlawful assembly despite ‘plenam et manifestam evidentiam,’ had been fined by the trial court.”108 Bushell appealed the ruling which resulted in Chief Justice Vaughan to rule “that jurors [could not] be punished for their verdicts.”109 For two centuries, this ruling empowered jurors to nullify when demanded by conscience.”110 Spooner,

107 Spooner, “Trial by Jury (excerpt),” 484.

108 Rubenstein, “Verdicts of Conscience,” 963.

109 Ibid., “Plenam et manifestam evidentiam” translates roughly to “full and manifest evidence” of the crime. Therefore, the Quakers were acquitted against the evidence.

110 Rubenstein, “Verdicts of Conscience,” 963.

30 however, writes in Trial by Jury, that the right to nullify was actually enshrined in the

Magna Carta of 1215.111 Regardless of the exact time that nullification was preserved in

English common law, it is clear that the English tradition “directly informed early

American criminal trials,” as “both the right to a jury trial and its associated nullification power were viewed as vital to ensuring liberty.”112 Jefferson, Adams, Hamilton, and other “Founders” believed that jurors had not only the right to judge the fact of the case in the matter of criminal law, but also the right to judge of the morality of the law itself.113 Soon after the ratification of the U.S. Constitution, Supreme Court Justice John

Jay, in The State of Georgia v. Brailsford, “told the jury that, while the court was deemed to be the best adjudicator of the law, both the facts and the law were in the province of the jury.”114 Only within the last century has this right been questioned. In this section,

I explain Spooner’s argument for the right to jury nullification as a check on oppressive law and suggest that it can be used today by lifestyle anarchists to reform the criminalization of so-called “vices,” one nullification at a time.

111 See Lysander Spooner, An Essay on the Trial by Jury, (Boston: John P. Jewett and Company, 1852), 20 – 50, and Steve J. Shone, “Lysander Spooner, Jury Nullification, and Magna Carta, 22 Quinnipiac L. Rev. 651, 669 (2004)” in Rubenstein, “Verdicts of Conscience,” 963, n. 20.

112 Rubenstein, “Verdicts of Conscience,” 964. See n. 28 in Rubenstein’s “Verdicts of Conscience,” 964, for an exhaustive list of court cases and academic essay’s arguing this point.

113 Ibid.

114 Horowitz, Irwin A., and Thomas E. Willging, "Changing Views of Jury Power: The Nullification Debate, 1787-1988," Law and Human Behavior 15, no. 2, Social Sciences and the U.S. Constitution (1991): 167. See, also, Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), G. Simson, “Jury nullification in the American system,” Texas Law Review 54 (1976): 488-504.

31

Before it is possible to thoroughly explain Spooner’s argument for jury nullification in Trial by Jury, it is important to explain both what the jury trial and its object are.

“Anciently called ‘trial per pais,’ *or+ ‘trial by the country,’” the jury trial is simply a manner of putting the accused before the country for judgment.115 “The object of this trial ‘by the country,’ or by the people” as opposed to a trial by the State, is to provide protection against oppression.116 Potential jurors are selected randomly in a manner that “precludes any previous knowledge, choice, or selection of them, by the government.”117 This selection process insures two things. First, the process insures that the sample of jurors constitutes a general sampling of the country representing, on balance, a fair sampling of all opinions, classes, genders and races.118 Second, the selection process insures that the jurors do not comprise a jury of the government’s

“partisans or friends,” which could be used in order to “maintain its own laws, and accomplish its own purposes.”119 Spooner presumes that a tribunal selected in this manner would “agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial.”120 Furthermore, because

115 Spooner, “Trial by Jury (excerpt),” 484 - 485.

116 Ibid.

117 Ibid.

118 Ibid., 485.

119 Ibid.

120 Ibid.

32 conviction requires all jurors to agree unanimously, it follows that no conviction can occur unless it is clear that there has been a “violation of such laws as substantially the whole country wish to have maintained.”121

There is one other condition for a true trial by country; the right and duty of the jury to nullify oppressive law. Nullification does not begin and end with merely judging the law, however. Spooner argues that the jury ought to have the right and duty to “judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government.” Spooner cited the following four juridical components over which the jury should judge. First, the jury has the right and duty to judge the justice of the law. If the law is oppressive, violates the rights and liberties of the citizens, or is merely “obnoxious” (as was the case of the Fugitive Slave Laws), the jury has the right and duty to acquit the accused.

If the government dictates to the jury the law they are to enforce without scrutiny by the jury, the jury no longer tries the accused by their own standards or their own

“judgments of their rightful liberties,” but rather by the standard put forth by their government, which becomes the benchmark for the people’s liberties.122 Furthermore, when the standards of the trial are mandated by the government, the results of the trial

121 Ibid.

122 Spooner, “Trial by Jury (excerpt),” 486.

33 are mandated as well.123 The effect is that the “government determines what are its… powers over the people, instead of the people’s determining what are their own liberties against the government.”124

Second, the jury has the right to “judge whether there really be any such law, (be it good or bad,) as the accused is charged with having transgressed,” and if so, whether it is being properly applied given the circumstances.125

Third, the jury must judge whether the law has been improperly explained to them by the court, for when a government can mandate an explanation of the law, they can dictate the law itself, because laws can change , depending on how they are explained.126 .

Finally, the jury must be able to judge the laws of evidence. This reason is that “if the government can dictate to a jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of any offence whatever which the government chooses to allege.”127 To reiterate, in Spooner’s view,

123 Ibid.

124 Ibid.

125 Ibid.

126 Ibid.

127 Ibid., 487.

34 the jurors must be able to judge the entire case - its morality, its constitutionality, and its legality. In this way, the “authority *is+ vested in the people” and “the people have all liberties, (as against the government,) except such as substantially the whole people

(through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.”128

There are a few common objections to the right of the jury to judge the whole case which Spooner answers in Trial by Jury. The first objection can be stated thus: The government in an American-styled democratic republic is elected by the will of the people and its members are sworn to uphold the constitutional law instituted by the people. The actions of the government, therefore, can be considered the actions of the people. To allow a jury (which also represents the people) to invalidate the actions of the government is thus to “array… the people against themselves.”129 Yet, there is no contradiction, according to Spooner, nor any “arraying” of the people against themselves by requiring that the laws must pass “the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of the laws.”130

The Constitution of the United States concurs. It provides for five different tribunals; the House of Representatives, the Senate, the executive, the judiciary and the jury.

Each acts as a “check and balance” against the other to ensure the authority of the law

128 Ibid. Emphasis mine.

129 Ibid., 487.

130 Ibid., 487-88.

35 before any person can be punished for violating it.131 The agents of the State are

“merely the servants and agents of the people” and must submit their laws or

“enactments” to the jury which is comprised of the people and is the most democratic of all the aforementioned checks and balances. Therefore, the laws must be submitted to a jury “before [the agents of the state] carry them into execution by punishing any individual for transgressing them.”132

But what of the ability of the people either to change the laws of the government by

“the influence of discussion” or, failing that, the “exercise of the right of suffrage?” This is the second objection against jury nullification, i.e. that there is no need for the jury to judge of the whole case as the people have both these options available in the event of governmental abuse. In the first case, the ability of the people to discuss and persuade the government to change the law, Spooner insists that discussion, on its own, can do nothing to affect change of oppressive law, unless it is backed by resistance, for “tyrants care nothing for discussions that are to end only in discussion.”133 Discussions are like

“idle wind” to tyrants.134 In the second case, “suffrage,” according to Spooner, “is equally powerless and unreliable.”135 First of all, suffrage occurs intermittently and the

131 Ibid., 488.

132 Ibid.

133 Ibid., 489.

134 Ibid.

135 Ibid.

36 oppressions must be tolerated in the periods between elections.136 Without the ability of the jury to judge the entire case, many of the accused could be convicted of oppressive laws while the people wait for the next opportunity to exercise their right of suffrage. Even then, there is “no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so.”137

Secondly, there is no guarantee that the next government will be any less oppressive than the last. Furthermore, even if the newly elected government is honest and less tyrannical than the last, the tyranny had already happened and the damage already incurred.

A third objection, persistent to this day, against jury nullification is that it is “absurd that twelve ignorant men should have power to judge of the law, while learned in the law should be compelled to sit by and see the law decided erroneously.”138

Spooner answers this objection by pointing to the fact that the power of the jury is not granted to them based upon their supposed ability to judge the application of the law better than the justices.139 Rather, it is granted on the “ground that the justices are

136 Ibid.

137 Ibid.

138 Lysander Spooner and Victor S. Yarros, Free Political Institutions: Their Nature, Essence, and Maintenance: An Abridgment and Rearrangement of Lysander Spooner's Trial by Jury, (London: C.W. Daniel, 1912), http://dwardmac.pitzer.edu/anarchist_archives/bright/spooner/fpichap4.html, (accessed May 8, 2011), Ch. 4.

139 Spooner and Yarros, Free Political Institutions, Ch. 4.

37 untrustworthy,… exposed to bribes,… fond of authority, and are also the depended and subservient creatures of the legislatures;… to allow them to dictate the law would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the rights of the people unreservedly into the hands of the legislature to be disposed of at its pleasure.”140 Judges and legislators are exposed to all manner of temptations to disregard the liberties of the people in favor of money, prestige and fame.141 On the other hand, even if the jurors are subject to illicit influence, the very method whereby jurors are chosen by lot (as described above), precludes that all twelve

“will prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty in all cases whatsoever; but that they should all prove dishonest is not within the range of . A jury therefore insures to us (what no other court does) the first and indispensible requisite in a judicial tribunal -- integrity.”142

Spooner’s argument is that all twelve persons on a jury will never be sufficiently corrupted as to convict an innocent person. However, his argument is open to criticism that only one juror need be corrupted to acquit a guilty person and confound the judicial process. This may be true. However, the power of one corrupted juror is the

140 Ibid.

141 Ibid.

142 Ibid.

38 power to acquit against the evidence in but one case. It is “not a power of absolute decision in all cases.”143 Furthermore, “it is a power to declare imperatively that a

*person’s+ property, liberty, or life shall not be taken from him; but it is not a Power to declare imperatively that they shall be taken from him.”144 Such a power may stymie the judicial process from time to time, but unlike the power of a judge or government, it is not a power capable of obstructing liberty through the imposition of oppressive laws on all (or most) of the people, all the time.

Having looked at a few objections and Spooner’s answers, the main thrust of the argument can be reiterated in Spooner’s words:

The trial by jury, then, gives to any and every individual the liberty, at any time, to disregard or resist any law whatever of the government, if he be willing to submit to the decision of a jury, the questions, whether the law be intrinsically just and obligatory and whether his conduct, in disregarding or resisting it, were right in itself. And any law which does not, in such a trial, obtain the unanimous sanction of twelve [people], taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it.145

Spooner argues, therefore, that the right of the jury to judge of the whole case is necessary for the people to resist the oppressions of their government and to prevent the punishment of the innocent. Although he puts forth a solid argument in Trial by Jury,

143 Ibid.

144 Ibid. Emphasis mine.

145 Spooner, “Trial by Jury (excerpt),” 490.

39 the claim that the jury has the right to nullify and not just the ability, is presently contentious, but merits further study. Despite the disagreement over this point among legal scholars, however, I believe that nullification should be pursued by lifestyle anarchists as a method of resistance against the State’s laws that criminalize lifestyle choices, which, as Spooner shows in “Vices are Not Crimes,” are oppressive. In Chapter three, I consider recent scholarship by Arie M. Rubenstein, a lawyer and legal theorist, suggesting a juridical method to reintroduce jury nullification back into the courtrooms.

In addition, I look at the recent successes of a organization, the Fully

Informed Jury Association (FIJA), and their efforts to educate the people of their ability to nullify oppressive laws.

40

Chapter 3

Having established that lifestyle anarchism is a tenable position given Spooner’s argument in “Vices are Not Crimes,” and that jury nullification is a means to resist State laws that affect lifestyle choice, in this chapter I survey two methods of informing jurors of their ability to nullify. The first proposal, as suggested at the end of Chapter 2, is made by Arie M. Rubenstein, a contemporary lawyer and legal theorist. Rubenstein’s proposal is a well-reasoned position based upon the Supreme Court’s reevaluation of the function of the jury as a means to prevent oppression by the government. This precedent may demonstrate a potential willingness by the Court to take another look at nullification. Although I agree with Rubenstein and find the implementation of his proposal a worthy goal, I argue below that its reliance upon review by the Supreme

Court places it well outside the realm of short-term acceptance. Instead, I suggest for a second proposal, that efforts underway by grassroots organizations such as the Fully

Informed Jury Association (FIJA) to educate the public are much more tenable as a proposed program of resistance. Given this claim, I look at the current practices of FIJA and suggest lifestyle anarchists offer their support to such organizations.

Before I assess these two positions, it is important to address the current state of nullification in the United States to explain what nullification’s proponents are up

41 against. As I note in the Introduction to this essay, nullification is almost universally condemned by the Federal courts and viewed as a form of “vigilante justice” by prosecutors.146 Although federal courts recognize the jury’s ability to “acquit against the evidence,” jurors are “instructed in the strongest terms that they cannot.”147 For example, section 1.04 of the “Criminal Pattern Jury Instructions” prepared by the

Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for the

Tenth Circuit, provides guidance for instructing the jury. According to the committee, the following instructions are suggested to be given to the jury prior to trial:

You, as jurors, are the judges of the facts. But in determining what actually happened—that is, in reaching your decision as to the facts—it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences.148

The above example of juror instruction demonstrates the court’s insistence that jurors judge only the facts and not the law. Jurors who demonstrate a propensity toward nullification are questioned and can be removed from the jury. Typically, however, by the time the jury has been assembled, the

146 J Rubenstein, “Verdicts of Conscience,” 960, and Biskupic, "In Jury Rooms, a Form of Civil Protest Grows." See, also, supra p. 3, n. 9.

147 Rubenstein, “Verdicts of Conscience,” 985.

148 Criminal Pattern Jury Instructions, Prepared by the Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for the Tenth Circuit, “Duty to Follow Instructions,” Criminal Pattern Jury Instructions, 9, http://www.ca10.uscourts.gov./downloads/pji10-cir-crim.pdf (accessed May 18, 2011).

42 examination of potential jurors by the judge and counsel, known as voir dire, has removed those persons who admit to either knowledge of nullification or to the possibility of voting their conscience.149 During voir dire, judges interview potential jurors to “determine whether they are suitable for trial” and “are instructed to question jurors as to whether they are prepared to apply the law as given.”150

Potential jurors who survive voir dire and are promoted to the jury face further challenges. According to Nancy J. King in “Silencing Nullification Advocacy,”

Jurors exposed as holdouts or advocates of nullification in the jury room are being dismissed, replaced, and sometimes prosecuted. The Second Circuit Court of Appeals recently declared that trial judges have the duty to dismiss jurors who intend to nullify. One state judge published a virtual ‘how to’ guide for other trial judges who wish to suppress nullification advocacy in their courthouses.151

149 Voir dire is the process of examination by the judge and counsel (the prosecution and defense) during jury selection. Examination may either be directed toward the entire pool of prospective jurors or toward individuals. (Rubenstein, “Verdicts of Conscience,” 986.)

150 Rubenstein, “Verdicts of Conscience,” 986.

151 Nancy J. King, "Silencing Nullification Advocacy inside the Jury Room and Outside the Courtroom," The University of Chicago Law Review 65, no. 2 (1998): 435. See, also, Frederic B. Rodgers, “The Jury in Revolt? A ‘Heads UP’ on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area,” The Judges Journal 35, no. 3 (1996).

43

Jurors with knowledge of nullification may not only be ejected from the courtroom, but may also face criminal prosecution for violating the “jurors’ oath,” “subject[ing] [jurors] to prosecution for perjury.”152

Furthermore, a majority of justices today hold the opinion that nullification is a recipe for chaos and anarchy.153 In the United States v. Dougherty (1972), a case held in the United States Court of Appeals for the District of Columbia Circuit Court, Judge

Leventhal, writing on behalf of the majority, summarized the prevailing opinion as follows:

This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate of anarchy…..The statement that avowal of the jury's prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of the social scientist. But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid.154

Similarly, Judge Sobeloff, writing for the United States Court of Appeals for the Fourth

Court, confirmed the aforementioned prejudice against nullification. Having been

152 Rodgers, “The Jury in Revolt.” The following Michigan statute provides an example of the juror’s oath “for the trial of all criminal cases. ‘You shall well and truly try, and true deliverance make, between the people of this state and at bar, whom you shall have in charge, according to the evidence and the laws of this state; so help you God.’” (Jonathan Belcher, "-Plus-Speech: The Constitutionality of Juror Oaths and Affirmations under the First Amendment," William & Mary Law Review 34, no. 1, (1992): 299.)

153 See supra p. 9, n. 31. Further evidence that the majority of judges hold this view can be logically derived from the fact that there have been no majority opinions dissenting from the landmark Sparf case over the last century. If this were not the prevailing attitude among justices in the United States, we would expect many examples of nullification advocacy throughout case law.

154 United States v. Dougherty , 473 F.2d 1113, 154 U.S. App. D.C. 76, 1972 U.S. App. LEXIS 8684 (1972), [**56].

44 convicted of mutilation of Government records, destruction of Government property, and interference with the administration of the Selective Service System, the defendants, who admitted to the evidence of the crimes, argued in their appeal that

“the trial judge should have informed the jury that it had the power to acquit the defendants even if they were clearly guilty of the offenses, or at least, that the court should have permitted their counsel so to argue to the jury.”155

That the trial judge refused either to allow defense counsel to argue on behalf of nullification, or to instruct the jury of their right to do so, demonstrates the unwillingness of judges to allow nullification into their courtrooms. Judge Sobeloff, writing for the majority in the above appeal echoes Leventhal’s opinion on nullification:

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.156

The question, then, considering the current state of nullification in the United States, is how nullification can be reintroduced into the criminal justice system so that those

155 United States v. Moylan, 417 F.2d 1002, 1009, 4th Cir. 1969, LEXIS 10411 (1969), [*1004].

156 United States v. Moylan, [*1134]. Judge Sobeloff seems to equate anarchy with chaos. However, anarchy does not necessarily lead to chaos, especially in the domain of the court system. For an alternative view, please see Appendix I, included below, which argues that no government is necessary for a fully functioning court system to exist and flourish within an anarchistic society.

45 persons sympathetic to lifestyle anarchism may resist the State.157 It is here where I turn to the two proposals mentioned above.

The first proposal is suggested by Rubenstein in “Verdicts of Conscience:

Nullification and the Modern Jury Trial.” In his paper, Rubenstein approaches the subject of nullification from the point of view of a lawyer and legal scholar, arguing that recent Supreme Court rulings have reconceived the role of the jury in terms of its function, as opposed to the “formalist precedent of Sparf.”158 He argues that “recent

Supreme Court precedent has reevaluated the role of the jury and in the process has expanded the possibilities for nullification.”159 In the essay, he does not deny the validity of the formalist precedent, but rather argues that the Supreme Court, given their recent reevaluation of the jury, may be open to a “conservative proposal for expanding the role of verdicts of conscience.”160 He cites the 1968 Supreme Court decision of Duncan v.

Louisiana as one example of this change. In the case, the Supreme Court was to decide whether “the right to a jury trial was ‘among those “fundamental principles of liberty

157 For more on lifestyle anarchism, please see Chapters 1 and 2 of this essay.

158 Formalism, according to Rubenstein, is a “method of legal reasoning where ‘the mere invocation of rules and the deduction of conclusions from them is believed sufficient for every authoritative legal choice.’” (Rubenstein, “Verdicts of Conscience,” 965.) Please see Part II of Rubenstein’s essay for his argument that the Supreme Court has “reconceptualized” the role of the jury in terms of functionalism which is more compatible with nullification than the “formalist” doctrine of the 19th Century. (Rubenstein, “Verdicts of Conscience,” 975-974.)

159 Rubenstein, “Verdicts of Conscience,” 959.

160 Ibid.

46 and justice which lie at the base of all our civil and political institutions.”’”161 Prior to this case, the Court’s “construction of the jury role ‘hing*ed+ on the formalist that there [was] very little left to do once the general rule [was] stated by the judge and the facts *were+ found by the jury.’”162 In Duncan v. Louisiana, the Supreme Court decided the issue in terms of the jury’s function as opposed to 19th century formalist beliefs. The

Court “perform[ed] an investigation of the functions and goals of a jury trial,”163 and

“observ*ed+ that ‘a right to jury trial is granted to criminal defendants in order to prevent oppression by the Government…. Fear of unchecked power… found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.’”164

The Court’s willingness to look beyond the formalist Sparf decision to the jury’s function “suggest*s+ that aspects of the jury trial should be evaluated based on the extent to which they can ‘prevent oppression by the Government’ and expand opportunities for ‘community participation in the determination of guilt or innocence.’”165 Therefore, Rubenstein asserts, nullification should be given another

161 Rubenstein, “Verdicts of Conscience,” 976, quoting Duncan v. Louisiana, 391 U.S. at 149.

162 Rubenstein, “Verdicts of Conscience,” 967, quoting Darryl K. Brown, “Jury Nullification Within the ,” Minnesota Law Review 81, (1997): 1160.

163 Ibid., 976.

164 Ibid., quoting Duncan, 391 U.S. at 155-56.

165 Ibid., 976.

47 look in terms of its “pragmatic results,” as a “safety valve against unjust application of the law” and a “control on unjust applications of both legislative and executive power.”166

Rubenstein concludes that the "debate over nullification revolves largely around the question of whether juries should be informed of [their] power to nullify."167 Generally, he suggests, there are two juridical recommendations made by proponents of nullification to expand the role of the jury, both of which he finds objectionable, opting instead for a “compromise position” below.168

The first recommendation is to allow the defense to argue directly for nullification, a position which stands in contrast to current “professional canons of ethics,” such as those issued by the American Bar Association.169 Rubenstein dismisses this recommendation because it “would radically alter the scope of the modern criminal trial.”170 If the defense could argue for nullification, he suggests, the state could argue

166 Rubenstein, “Verdicts of Conscience,” 977, 973.

167 Ibid., 985 and 985, n. 204.

168 Ibid., 987.

169 Ibid., 988. The following quote is from the 1980 ABA Standards for Criminal Justice: "’A lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury's verdict.’ ABA Standards for Criminal Justice Standard 4-7.8 (2d ed. 1980) (Defense Function Standards),” in Rubenstein, “Verdicts of Conscience,” 988 n. 204.

170 Rubenstein, “Verdicts of Conscience,” 988.

48 against it. Furthermore, the defense and state could also argue for and against moral blameworthiness, enlisting the expert testimony of ethicists or “expert philosophers.”171

Rubenstein’s criticism of such a possibility is not based upon a conclusion that it is undesirable, but rather that it is simply unrealistic “to expect such radical change.”

Radically altering the scope of the modern jury trial would never pass Supreme Court scrutiny and would thus derail any attempt at reintroducing nullification.172

The second recommendation that Rubenstein rejects is for juries to receive instruction about their ability to nullify. Advocates of this recommendation suggest that juries should be given clear instructions that they “serve… a dual role of fact finding and of evaluating the application of the law in the instant case.”173 Although agreeing that the jury should be instructed in their ability to judge both the facts and the law, proponents have recommended different instructions ranging from those written by

John Adams,174 to instructions currently employed by Maryland, “whose constitution explicitly permits jury nullification.”175 Rubenstein rejects the proposal to instruct juries of their power of nullification as well, for two reasons. First, instructing the jury of their

171 Ibid., 989.

172 Rubenstein, “Verdicts of Conscience,” 988.

173 Ibid., 989.

174 “'It is not only [a juror's] right, but his duty ... to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.’” (Rubenstein, “Verdicts of Conscience,” 990, quoting John Adams, The Works of John Adams, vol. II, (Boston: Charles C. Little & James Brown, 1850), 253-55.

175 Rubenstein, “Verdicts of Conscience,” 990.

49 ability to nullify, without accompanying evidence introduced by counsel, could result on a decision “based only on the (insufficient) information” presented to it.176 Andrew

Leipold in “Rethinking Jury Nullification,” presents the following example which explains the problem: “When jurors acquit a clean-cut student charged with drug possession because they fear a conviction will ruin his future, they may not know that the same student has had frequent disciplinary problems, had a stash of drugs in his car when arrested (which was suppressed because of an illegal search), and is otherwise a character not worthy of sympathy.”177 Secondly, Rubenstein argues that the “trial courts are unlikely to experiment with the instruction.”178 The bias against nullification within the judicial system is such that “it is unlikely that the courts will accept a nullification instruction.”179

Rubenstein’s proposal is a compromise, not of the two proposals mentioned above, but of the second proposal, to instruct the jurors of their power to nullify, and the current instruction employed by the courts that the jurors are to judge only the facts.

176 Ibid., 991.

177 Andrew D. Leipold, "Rethinking Jury Nullification," Law Review 82, no. 2 (1996): 303. I humbly suggest that this problem would not be a result of allowing defense to argue for nullification. Instead, it would be a result of the court disallowing evidence to be admitted that has a direct bearing on a nullification judgment. The problem, therefore, is a result of the courts’ treatment of nullification, and not directly related to the proposition Rubenstein dismisses. One remedy for such a problem would be to allow the jury to judge the evidence fully, as per Lysander Spooner’s admonition discussed in Chapter 2.

178 Rubenstein, “Verdicts of Conscience,” 991.

179 Ibid.

50

Specifically, Rubenstein proposes to “neither inform jurors of their power to nullify, nor to explicitly instruct them that they are forbidden to do so.”180 He suggests that

Jurors would be told that they will be given the law, will find the facts, and should apply the law to the facts, but neither jury instructions nor counsel at argument would tell the jurors that they must adhere to the law where it violates their moral sense. Voir dire examination of jurors would be slightly modified: Judges would attempt to ascertain not whether a potential juror would adhere to instructions regardless of conscience, but rather whether a potential juror would approach the case with an open mind.181

Rubenstein claims that his compromise position avoids the problems of the other two in the following two ways. The first is that because his suggestion is not significantly different from the current approach toward nullification, the number of cases nullified by jurors [would] not be significantly altered.182 Nullification would only occur in those cases where the juror’s were significantly troubled and were “obstacles to conviction,” eliminating the criticism that nullification would result in a much greater number of acquittals.183 Secondly, Rubenstein maintains, because defense attorneys would not be allowed to argue for nullification, no major changes to evidence or witness testimony would take place either.184 “The only procedural change,” he writes, “would

180 Ibid.

181 Rubenstein, “Verdicts of Conscience,” 991-92.

182 Ibid., 992.

183 Ibid.

184 Ibid.

51 be the excising from jury instructions of language imposing an absolute duty to follow the law regardless of conscience.”185

Voir dire would also be slightly altered. Instead of the judge ascertaining whether or not the venire-member would “adhere to instructions regardless of conscience,” the judge would ascertain whether or not a “potential juror would approach the case with an open mind.”186

Although Rubenstein’s proposal appears feasible, given recent Supreme Court precedent, and avoids the aforementioned problems related to both the allowance of defense to argue for nullification and instructing the jury about nullification, I believe that Rubenstein is open to the same criticism he levies against the aforementioned common recommendations for nullification. Specifically, I have in mind the charges that

“it is unrealistic to expect such a radical change,” and that the “courts are unlikely to experiment with this instruction” (or in the case of Rubenstein’s compromise proposal, an abandonment of current jury instruction). Even though his proposal appears modest in terms of procedural changes at the level of jury instruction and voir dire examination, at bottom, Rubenstein is arguing that the courts ought to discard a century of legal tradition informing current instruction practices and voir dire examination. Such a change is likely to be met with significant resistance by prosecutors, many of whom

185 Ibid.

186 Ibid.

52 consider nullification a form of ”vigilante justice,” and judges who see nullification as “a recipe for anarchy.”187 The reform, therefore, would need to take place at the level of the Supreme Court which is possible given its reformulation of the role of the jury in terms of its function. However, to do so would require the intervention of a legal team to challenge the current status of nullification through a series of appeals all the way to the Court. Although possible, whether or not such a challenge is probable remains to be seen.

Given that Rubenstein’s proposal could likely take years (perhaps decades?) to wind its way through the myriad of lower courts before finally arriving at the door of the

Supreme Court, I turn to a second proposal by which lifestyle anarchists may introduce nullification back into the judicial system . This method is neither juridical nor legislative in nature, and thus may not be properly deemed a “proposal” at all. It is rather a means of informing the people of their right to nullify and is embodied in the work of organizations such as the Fully Informed Jury Association (FIJA), “a national, nonprofit organization promoting the right of jury nullification.”188 According to the organization’s website, FIJA

[w]orks to restore and protect the role of the juror, and the institution of Trial by Jury. We sponsor educational seminars for legal professionals, publish commentary, develop and present Amicus briefs when the

187 Biskupic, "In Jury Rooms, a Form of Civil Protest Grows," and Rodgers, "The Jury in Revolt?”

188 King, “Silencing Nullification Advocacy,” 434.

53

institution of the jury is at issue, provide interviews to the media, speak at functions and in classrooms, and of course distribute educational literature. Our newsletter The American Juror is published quarterly. We articulate that the authority of the jury is the right that protects all other rights.189

With a yearly proposed budget of $140,000 received “from individual donors, foundations, and membership dues,” FIJA policy “has been to ensure that the educational message is spread as widely as possible.”190 The organization was conceived by Larry Dodge, former Chair of the Montana Libertarian party. At the 1989

National Libertarian Party in , Dodge led a discussion group of forty-four persons, organizing the National FIJA the following summer.191 Soon thereafter, state-level associations began to sprout up around the country. The organization’s focus, in recent years, has been on conducting media campaigns which has “suppl[ied] prop kits to a number of television series and film producers.”192

Additionally, FIJA “works with writers and media professionals to ensure that an accurate message on the authority of the jury reaches the public.”193

189 Iloilo Marguerite Jones, “About FIJA,” Fully Informed Jury Association, http://fija.org/about/, (accessed May 16, 2011).

190 “Fully Informed Jury Association - History,” Fully Informed Jury Association, http://fija.org/history/ (accessed May 16, 2011).

191 Ibid.

192 Ibid.

193 Ibid.

54

Given that judges and prosecutors are screening for jurors knowledgeable of nullification during voir dire, FIJA has published a brochure written by Clay S. Conrad, lawyer and author of Jury Nullification: The Evolution of a Doctrine, entitled “Doing Your

Best as a Trial Juror: Surviving Voir Dire.” In the essay, Conrad presents strategies that potential jurors can utilize during voir dire in order to “survive jury selection” and be seated on the jury.194 Conrad writes that potential jurors can be removed from the venire, “the group of citizens from which the jury is chosen,” in two ways.195 First, venire-members can be removed “for cause” which means that the venire-member is

“legally ineligible to serve.”196 Examples of legal ineligibility include insanity, a felony record, lack of citizenship and most pertinent to nullification, being “unable or unwilling to apply the law.”197 The other method of removing venire-members is through the use of “peremptory strikes.” A peremptory strike is generally used when either party to the case feels that the venire-member “would be unlikely to vote for their side.”198

Peremptory strikes can take place “for any reason other than race or gender,” and are generally limited in number depending on the jurisdiction.199 According to Conrad, “the

194 Clay S. Conrad, "Doing Your Best as a Trial Juror: Surviving Voir Dire," FIJActivist Special Educational Supplement (2009), http://fija.org/download/BR_YYYY_surviving_voir_dire.pdf, (accessed May 15, 2011).

195 Conrad, “Surviving Voir Dire,” ii.

196 Ibid.

197 Ibid.

198 Ibid.

199 Ibid.

55 prosecutor and the defense attorney get to question venire-members about their attitudes, opinions and behaviors in order to ‘intelligently’ exercise peremptory challenges.”200 To survive voir dire, therefore, venire-members must not only appear willing to apply the law, but must also “appear neutral and fair to both sides” while being truthful, “but neutral.”201 Conrad is explicit in his charge to readers to be honest as dishonesty during voir dire may “constitute perjury or obstruction of justice.”202

Conrad gives some general rules to guide the venire-member and suggests that potential jurors should never volunteer information to questions above and beyond what is asked of them. They should “never elaborate on *their+ answers to voir dire questions, or volunteer answers to questions that have not been asked.”203 For example, a question typically asked by counsel during examination is “’What magazines or newspapers do you subscribe to or read regularly?’” Conrad advises the summoned juror to cancel her magazine subscriptions prior to voir dire to prevent having to lie. He writes, it is “time to cancel some subscriptions – at least temporarily! And time to start reading Popular Mechanics, PC World, Money and People. Don’t mention U.S. News &

200 Ibid.

201 Ibid., iii.

202 Ibid.

203 Ibid.

56

World Report or The Economist. People interested in world events tend to be opinionated independent thinkers.”204

Conrad also gives potential jurors advice on their appearance. He urges the summoned juror to cut her hair (especially if she has dreadlocks), cover tattoos and remove body jewelry. “Come into court looking like a respectable, law abiding middle- class American…. Wear clean, business casual clothes….. Bring work related reading material such as a technical manual, a paperbook novel, or a non-issue magazine (not

High Times or Sports Shooting!).”205 Furthermore, because very few people are excited to be forced into jury duty, the venire-member should “act bored and a smidgen annoyed that *she+ must waste *her+ time on a case *she+ could not care less about.”206

Conrad’s advice does not end with voir dire. Once in the courtroom, jurors should not “mention nullification during the jury service unless the ‘not guilty’ votes are in the majority,” because, as mentioned above, the judge may still question and then remove jurors believed to be nullifying.207 If questioned by the judge, Conrad recommends

204 Ibid.

205 Ibid., High Times is a popular, pro-cannabis magazine.

206 Ibid.

207 Ibid., iii – iv.

57 expressing doubts about the “reliability of the evidence, the witnesses, or the police.”208

Such doubts may lead the judge to return the juror to the deliberations.209

Moreover, Conrad asserts, if some members of the jury refuse to vote to acquit, then the juror should vote to hang the jury.210 He writes, “you have a right to hang – you do not have a right to compromise someone else’s life away. Vote your conscience even if other jurors browbeat you…. Principles cannot be compromised – only abandoned….

Hang with pride. A hung jury sends a message to the prosecutor and judge about the acceptance of the law, and a series of hung juries sends a message to the legislature.”211

Although FIJA has enjoyed success educating the public over recent years about their ability to nullify, some advocates have been harassed or arrested, causing FIJA to make suggestions about distributing literature. One such advocate named Frank W.

Turney, was arrested and convicted in Alaska for jury tampering.212 Although Turney

“regularly demonstrated in support of FIJA both inside and outside the Fairbanks courthouse between 1990 and 1994,” his arrest and subsequent conviction were due to his activities during the trial of Merle Hall, a friend of Turney’s accused of illegally

208 Ibid., iv.

209 Ibid.

210 A hung jury is a jury that cannot agree upon a verdict.

211 Conrad, “Surviving Voir Dire,” iv.

212 Turney V. Alaska, 936 P.2d 533; 1997 Alas. LEXIS 46 (1997).

58 possessing a concealed firearm. According to a 1997 appeal to the Supreme Court of

Alaska, Tourney “approached several jurors and attempted to inform them about jury nullification.”213 In addition to publicizing FIJA’s telephone number (1-800-TEL-JURY),

“his advocacy also included signs, leaflets, discussion, and demonstrations.”214 His jury tampering charges concerned his contacts with three of the jurors whom he approached both inside and outside the courthouse.215 Two of the jurors, Rice and Paluck, called

FIJA number and heard a message to the effect that as Americans, they had the right to judge both the law and the facts “regardless of the instructions from the judge because jurors can not [sic] be punished for their verdict.”216 Upon hearing the message, jurors

Rice and Paluck changed their vote from guilty to not-guilty, setting the stage for the arrest of Turney for jury tampering. Turney appealed his conviction all the way to the

Alaska Supreme Court who eventually affirmed the conviction in 1997. At issue was not whether Turney had the First Amendment right to distribute FIJA materials but rather the way in which he proceeded to do so. This lead to further recommendations from

FIJA regarding pamphleteering and other educational efforts.

213 Turney V. Alaska, [**4]

214 Ibid.

215 Ibid., [**6]

216 Quote from the automated message one hears when calling “1-800-Tel-Jury,” in Turney v. Alaska, [**4], n 1.

59

According to FIJA pamphlet, “Distributing FIJA Literature in Front of Courthouses,”

FIJA activists interested in a particular case “should establish a presence at least two weeks prior to a particular jury trial, and continue at least a week after” in order to keep from associated with a particular case.217 Activists should “make it clear that they are only passing out information of general interest to all citizens, and are not trying to influence any particular case.”218 Furthermore, “no case-specific literature should be distributed with FIJA literature to anyone who might be a prospective juror.”219 These new guidelines have resulted in far fewer tampering charges. According to FIJA pamphlet, “although a few people have been hassled, some even arrested, we have rarely had anyone convicted of anything for passing out FIJA brochures…. Usually when the authorities decide there is not much they can actually do to stop brochure distribution, they stumble over themselves in their haste to dismiss charges or otherwise back down. Perhaps they come to realize that prosecuting you for jury tampering will mean giving FIJA brochures to your jury as evidence.”220

217 "Handing out Fija Literature around Courthouses." Fully Informed Jury Association, 2009, http://fija.org/download/AO_Distributing_FIJA_Literature.pdf, (accessed May 21, 2011).

218 Ibid.

219 Ibid.

220 Ibid.

60

FIJA is having an impact on the public’s perception of nullification, prompting media coverage on the organization and the issue of nullification.221 In addition, the organizations efforts have caused Justice Frederic B. Rodgers to write an essay for the

American Bar Association’s journal, The Judges Journal, entitled “The Jury in Revolt? A

‘Heads Up’ on the Fully Informed Jury Association Coming Soon to a Courthouse in Your

Area.”222 An opponent of nullification, Rodgers essay attempts to educate other judges on how to “handle someone who reveals partiality for the nullification theory in voir dire, and… how to react to pamphleteers distributing brochures and leaflets” about nullification.223

Clearly FIJA is having an effect educating the public on their ability to nullify. Instead of having to wait for the Supreme Court to challenge current instruction methods such as proposed by Rubenstein, I contend that Lifestyle anarchists should support existing organizations such as the FIJA either by actively engaging in resistance through pamphleteering around courthouses or by contributing financially.224

221 See, for example, Wade Lambert, “More angry men. (Cover story),” Wall Street Journal, Eastern Edition, May 25, 1995., A1, Academic Search Premier, EBSCOhost (accessed May 24, 2011), "When Jurors Ignore the Law," New York Times, May 27, 1997., Academic OneFile (accessed May 24, 2011), "Drug Laws Help Foster Juror ," New York Times, June 03, 1997., Academic Search Premier, EBSCOhost (accessed May 24, 2011), and Adam Liptak, "A State Weighs Allowing Juries To Judge Laws," New York Times, September 22, 2002., Academic Search Premier, EBSCOhost (accessed May 24, 2011).

222 Rodgers, “The Jury in Revolt?”

223 Ibid.

224 Pamphlets are available for download at the FIJA website, http://fija.org/document- library/brochures/.

61

Conclusion

Lysander Spooner, in “Vices are not Crimes,” argues in the tradition of American individual anarchism for self-sovereignty in the matter of lifestyle choices: the right of each person to “inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is to him, vice;… what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness.”225 When this right is removed by a government, whether dictatorial or democratic, “then each *person’s+ whole right, as a reasoning human being, to ‘liberty and the pursuit of happiness,’ is denied.”226

If Spooner is right and vices are not crimes, then it is the State, the organization holding a monopoly on the use of force, which is guilty of criminality. For the State commits crimes by fining, detaining, and imprisoning the innocent; those members of society who do nothing more than seek their own happiness, without doing harm to another, in their own way. The State argues that it has the right to determine for every individual which acts tend toward happiness and which do not. It has decided the lifestyle choices in which the people may or may not engage. Thus, it maintains the

225 Spooner, “Vices are not Crimes,” Ch. V. Emphasis in original.

226 Ibid., Ch. V.

62 right to “absolute control over the minds and bodies of” its citizens, utilizing coercion to force obedience from the population.227

Proponents of lifestyle anarchism reject this right. Agreeing with Spooner, lifestyle anarchists argue that vices are not crimes and that choices made by individuals relating to their lifestyles are not deserving of punishment. Therefore, lifestyle anarchists demand that the State allow individuals to “pursue their own happiness, under the guidance of [their] own judgment, and by the use of their own property.”228

Such a demand should be followed by resistance -- the nullification of oppressive law by conscientious jurors.

Jury nullification, as a right, faces opposition from more than one century of common law. It is also opposed by a majority of judges and prosecutors alike. Yet, the very nature of the “trial per pais,” as explicated by Spooner, grants the jury, at minimum, the ability to nullify oppressive laws such as those relating to lifestyle choice.229 It is this ability that must be seized by lifestyle anarchists as a means to resist oppressive State laws.

Although there are proposals by academics to reintroduce jury nullification into the modern criminal jury trial, lifestyle anarchists should not hold their breath, waiting for

227 Spooner, “Vices are not Crimes,” Ch. V.

228 Ibid., Ch. XIII.

229 Supra p. 32, n. 120.

63 the Supreme Court to legitimize a four hundred year old practice.230 Instead, lifestyle anarchists should embrace and support organizations, such as FIJA, to educate potential jurors of their power to acquit against the evidence or hang. A series of acquittals and hung juries will force the courts and legislators to take a second look at unjust lifestyle laws.

230 See supra p. 46-52, for Rubenstein’s proposal to reintroduce nullification.

64

Appendix I: A Direction for Further Research - Law in an Anarchistic Society

Traditionally, the judicial system has been thought of as a public or good that is both essential for the existence of any social order and also incapable of being supplied voluntarily, thereby necessitating the State to provide a system of courts (or at minimum, enforce privately arbitrated decisions). However, numerous works have been published within the last three decades calling this traditional thought into question.231 Indeed, an entire volume of academic essays and book selections has been culled from the literature and edited by Edward P. Stringham to deal with this very topic in Anarchy and the Law: The Political Economy of Choice.232 Anarchy and the Law draws from a myriad of academics, legal experts, political philosophers, economists and political scientists, from and to Lysander Spooner and

Edmund Burke, and attempts to “bring together a sampling of the major essays explaining, debating, and giving historical examples of stateless orders.”233

231 See, for example, Hans-Herman Hoppe, “Fallacies of the Public Good Theory and The Production of Security,” Journal of Libertarian Studies, Winter (1989), 27-46, E. Brubaker, “Free Ride. Free Revelation, or Golden Rule?” Journal of Law and Economics, April (1975), 147-61, and Kenneth Goldin, “Equal Access vs. Selective Access: A critique of Public Goods Theory,” , Spring (1972), 53-71.

232 Edward P. Stringham, Anarchy and the Law: The Political Economy of Choice, Independent Studies in Political Economy, (New Brunswick: Transaction Publishers, 2007).

233 Stringham, "Introduction," In Anarchy and Law: The Political Economy of Choice, 1-17, (New Brunswick: Transaction Publishers, 2007), 1.

65

An anarchistic society, in the tradition of individual anarchism, is defined “as a society in which there is no legal possibility for coercive aggression against the person or property of an individual.”234 The State, owing its very being to the existence of said coercive aggression, is defined as that institution which maintains a legal monopoly on the use of force over a given territory. According to Rothbard, the State “possesses one or both of the following : (1) it acquires its income by the physical coercion known as ‘taxation’; and (2) it asserts and usually obtains a coerced monopoly on the provision of defense service (police and courts) over a given territorial area.”235

Coercion can be simply defined as “physical violence or the threat thereof.”236 A judicial system within an anarchistic society, therefore, will be one based upon voluntary cooperation rather than coercion. It is important to point out, however, that anarchists need not “’assume that all people are good’, and that without the State no crime would be committed.”237 Instead, anarchism accepts that any social system will have its share of disputes and crime and will therefore require a system for the resolution of these disputes, the enforcement of contracts and the prosecution of criminals. The key point is that “anarchism advocates the dissolution of the State into social and market

234 Murray Rothbard, “Society Without a State,” Libertarian Forum VII, no. 1, (1975), 3.

235 Ibid.

236 Ibid.

237 Ibid., 4.

66 arrangements,” (i.e. voluntary agreements), and these arrangements are far more flexible… than political institutions.”238

In this appendix, I survey work on the theory of private property anarchism

(otherwise known as anarcho-capitalism or individual anarchism) as it relates to the role of the courts, drawing from Anarchy and the Law and other essays.239 First, I explain a few of the common problems associated with the present day, State-based judicial system in order to demonstrate that an anarchistic system should not be gauged against the assumption of a perfect judicial system. Instead, insists Rothbard, “what we must do is to begin at the zero point and then critically examine both suggested alternatives.”240 Second, I discuss the possibility of the development of a legal code in the absence of legislation, an occurrence both having historical precedence and consistent with anarchism. Finally, I explain, based upon the readings of Friedman,

Osterfeld and Rothbard, the legal process as it would likely emerge in an anarchistic society.

The current, State endorsed, juridical system has many problems. The first has to do with the fact that the government has a near-monopoly over dispute resolution and criminal trials. This lack of results in poor service. I use the term “near- monopoly” because even in the present era, “the notorious inefficiency and coercive

238 Ibid.

239 Specifically the work of Friedman, Osterfeld and Rothbard. See Works Cited.

240 Rothbard, “Society Without a State,” 4.

67 and cumbersome procedures of the politically run government courts” has led a number of individuals and companies to seek dispute resolution from private arbitration agencies such as the American Arbitration Association. According to William C.

Wooldridge, author of Uncle Sam, Monopoly Man, a “system of extralegal, voluntary courts has progressed hand in hand with a body of private law,” leading to “bilateral

‘law*s+’” which take the place of official law.241

The second problem in the current State-run system is the lack of restitution given to victims of crimes. Consider what happens at present to a victim of burglary. The suspected burglar is prosecuted by the “district attorney” on behalf of the State (or more broadly, “society”). If convicted, he may or may not have to make restitution to the victim. More often than not, the convict will spend a number of months or years in a prison, paying his debt back to “society,” a prison paid for by the victim through coercive taxation. The victim is robbed, first by the criminal and then is forced to pay for his imprisonment! In an anarchistic society, “there will be no ‘district attorney’ to press charges on behalf of society. Only the victims will press charges as the plaintiffs.”242 Indeed, the focus of punishment will be to force the criminal to make restitution to the victim.

241 William C. Wooldridge, Uncle Sam, Monopoly Man, (New Rochelle: Arlington House, 1970), 101, in Rothbard, “Society Without a State,” 5.

242 Rothbard, “Society Without a State,” 6.

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The third and final problem relating to the present-day system is that of the right to subpoena. Suspected criminals are routinely detained in a form of involuntary servitude prior to trial. However, unless a person is caught in the act of violating the person or property of another, “it is impossible to justify any imprisonment before conviction, let alone before trial.”243 This third problem then, is yet another example of government coercion. In Rothbard’s view, “the hallmark of an anarchist society is one where no man may legally compel someone who is not a convicted criminal to do anything, since that would be aggression against an innocent man’s person or property.”244

These are but a few of the myriad of problems associated with the current judicial system. It was important to point these out as new proposals such as those presented in this paper relating to anarchism, are “almost always gauged against the implicit assumption that the present, or statist, system works to perfection.”245 Philosophically, however, it is simply illegitimate to critically examine the anarchist alternative while starting with the present system as the implicit given.246

Having accepted the problems with the current system, I now turn the discussion to a common misperception of anarchy, the idea that an anarchistic society would be a

243 Rothbard, “The Tyranny of Government Courts and Prisons,” In For a New Liberty: The Libertarian Manifesto, (New York: Collier Books, 1978), http://mises.org/mobile/daily.aspx?Id=5199/, (accessed May 2, 2011).

244 Rothbard, “Society Without a State,” 6.

245 Ibid., 4.

246 Ibid.

69 lawless society. According to David Osterman in “Anarchism and the Public Goods

Issue,” this view “pervades nearly all the critical literature, professional as well as popular, on the subject.”247 However, this view is incorrect. Although anarchists oppose legislation, they are not opposed to law, per se. 248 In fact, within the domain of anarchistic literature, one finds “continual references to ‘,’ ‘objective law,’

‘common law,’ the ‘libertarian law code,’ ‘enforceable custom,’ etc.”249 The literature mentions many different examples of law existing without the imposition from a legislature (or sovereign), from ancient Irish property law to classical Roman civil law.250

One historical example of a legal code existing outside the legislative domain can be found in English Common law. According to economist , English common law was “almost entirely the product of law-finding by jurists and only to a very small extent the product of legislation.”251 Common law grew out of a body of

“individual juridical decisions,” the origins of which can be traced the twelve century

247 David Osterfeld, Anarchism and the Public Goods Issue: Law, Courts, and the Police,” The Journal of Libertarian Studies, Vol. IX, no. 1, (1989), 48.

248 For a more thorough discussion of the possibility of law in the absence of legislation, please see Osterfeld, “Anarchism and the Public Goods Issue,” Section 1, 48-53.

249 Osterfeld, “Anarchism and the Public Goods Issue,” 49.

250 See Joseph R. Peden, “Property Rights in Celtic Irish Law,” (1977), In Anarchy and the Law: The Political Economy of Choice, edited by Edward Stringham, 565–85. (New Brunswick: Transaction Publishers, 2007), and Bruno Leoni, Freedom and the Law, (Princeton: Van Nostrand, 1961).

251 Friedrich A. von Hayek, Law, legislation and liberty, vol. 1, Rules and Order (Chicago: University of Chicago Press, 1973), 83, in Osterfeld, “Anarchism and the Public Goods Issue,” 50.

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“pre-Norman England,” where “past juridical decisions became the basis for future ones.”252 An anarchistic society, therefore, need not be a lawless one.

Given that anarchy need not be lawless, how might the courts operate in an anarchic society? How might disputes be settled? How might we protect ourselves from criminals? To answer these questions, I will consider four different cases of dispute. In the first case, if a dispute, whether the breach of contract with two individuals or companies, or the criminal aggression against a person or property, is settled according to “the mutual agreement of the parties involved, there would be no problem.”253 According to Osterfeld, this situation “is often the case, for example, when an accident victim and the other party or his insurance company agree on a settlement.”254 It is not impossible to imagine a similar situation involving a crime.

Imagine that a person, having her camera stolen by a petty thief, calls upon her protection agency to report the crime. The agency, upon reviewing surveillance footage from the scene of the crime, identifies the criminal and contacts him, demanding the return of the camera, plus a fee for the victim and the company’s trouble. Having been caught red-handed, the thief returns the camera and pays the fine. Case closed. There would be no need to send the thief to jail to repay his debt to “society.” The victim, having received restitution, is satisfied.

252 Osterfeld, “Anarchism and the Public Goods Issue,” 50.

253 Ibid.

254 Ibid., 56.

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But what if the two parties are unable to reach an agreement? In this second case, the two parties unable to reach an agreement are likely to bring their disagreement voluntarily to an arbitrator. In some cases, this decision “may arise after a dispute has arisen” or it may have been “provided in advance in the original contract.” In the case of the ”camera snatcher” above, it is possible that the man might maintain his innocence, and claim that another person stole the camera. In this case, he might agree with the victim to submit their case to an arbiter whose decision both parties agree to follow. In other words, if the two parties can agree on which court or arbitrator to submit the case to, the decision of the court would be binding and again, there would be no further problem. According to Rothbard, “there is no problem in such an arrangement gaining legitimacy.”255 Indeed, as I noted above, a number of citizens have voluntarily turned to private, expert arbitration courts for dispute resolution.

In the third case, the possibility arises that the two parties will not agree on an arbitrator or court to take their disagreement. We could imagine that the person accused of stealing the camera might wish to submit the case to one court while the victim might submit the case to another. If this happens, two different scenarios might result. In the first, both courts might come to the same conclusion, either that the accused is guilty or innocent. If both courts agree, regardless of the decision, it would be binding. In the second scenario, the courts might disagree. In this case, more than likely, the courts would have reached a prior agreement that in the event of a

255 Rothbard, “Society Without a State,” 4-5.

72 disagreement, the courts would simply “submit the dispute to an appeals court,” the decision of which would be binding.256 In the rare event that the courts could not choose a court or arbitrator to which they would appeal, “then no decision could be made.”257 However, if a court made a habit out of this type of practice, “other courts would refuse to do business with it, causing it to lose many or most of its customers, and thereby risking bankruptcy.”258

The fourth case is one in which a person accused of aggression against the person or property of another refuses to submit to arbitration. In this case, he can neither be compelled to go to court nor can he be arrested and held against his will while awaiting trial. The reason for this is the so-called non-aggression axiom which is the aforementioned hallmark of an anarchistic society - no one can be legally compelled to do anything unless they are a convicted criminal. Of course, however, the victim has the right to take the matter to the court of her choice and try the accused in abstentia.259 The decision of her court would be binding and if convicted, the now convicted criminal could be forced to make restitution.260 “The decision of that

256 Osterfeld, “Anarchism and the Public Goods Issue,” 59.

257 Ibid.

258 Ibid.

259 Ibid.

260 For more information on restitution in an anarchistic society, please see Bruce L. Benson, “Restitution in Theory and Practice,” Journal of Libertarian Studies XII, no. 1 (1996): 75-97.

73 company,” according to Osterfeld, “would be binding unless the reluctant party then submits his case to another court agency.”

The aforementioned four scenarios cover most cases of either contract violation or aggression against the person or property of another but leave one glaring question unanswered. What of the case of murder, the ultimate aggression against the person of another? It is important to remember that in an anarchistic society, “law is produced on the market.”261 Courts, the arbiters of disputes, whether civil (most likely involving the breaking of a contract) or criminal (involving aggression against the person or property of another), would support themselves by “charging for the service of arbitrating disputes” and their success would depend “on *their+ reputation for honest, reliability, and promptness and on *their+ desirability to potential customers.”262 More often than not, the primary consumer of the court’s services would be protection agencies.

Protection agencies would be supplied on the market “at different rates and designed to meet a host of different consumer needs so that those who wanted bodyguards twenty- four hours a day could hire them, while those who merely desired an occasional nightly check on their property could get that too.”263 Still others would pay for police services such as those in existence today, where the police are not protectors, per se, but rather

261 David Friedman, “: Guide to a Radical Capitalism (excerpt),” In Anarchy and the Law: The Political Economy of Choice, edited by Edward Stringham, 40-56, (New Brunswick: Transaction Publishers, 2007), 44.

262 Friedman, “The Machinery of Freedom,” 44.

263 Osterfeld, “Anarchism and the Public Goods Issue,” 59.

74 men and women available to report on stolen items, survey a crime scene or report on a car accident.264 Some individuals may “feel that the risk to themselves of being convicted, correctly or incorrectly, and executed for a crime outweighed any possible advantages of capital punishment.”265 These individuals, therefore, they would patronize protection agencies that patronized courts that did not give capital punishment for the crime of murder. Other individuals might feel the opposite. They might feel strongly about the deterrent effect of capital punishment and would, “if possible, patronize agencies that patronized courts that did give capital punishment.”266

If person A is charged with a capital crime by the family, friend or other representative of the murdered person B, the respective protection agencies will take the case to court in one of the four aforementioned ways. The problem occurs when person A and the representative of person B patronize different capital punishment systems. According to Friedman, the resolution to the problem need not be complicated. He writes, “we can each have our preferences reflected in the bargaining demands of our respective agencies. If the opponents of capital punishment feel more strongly than the proponents, the agencies will agree to no capital punishment; in exchange, the agencies

264 For more information on protection agencies, please see Osterfeld, “Anarchism and the Public Goods Issue,” 59-65, and Rothbard, “Police, Law, and the Courts,” 18-23.

265 Friedman, “The Machinery of Freedom,”44.

266 Ibid.

75 that want capital punishment will get something else. Perhaps it will be agreed that they will not pay court costs or that some other disputed question will go their way.”267

Although there is no way to forecast the precise mechanisms by which murder, aggression of property and person or contract violation will be handled in an anarchistic society, the works of Friedman, et al. suggest a viable alternative, i.e. non-coercive, voluntary associations. This alternative calls into question the prevailing thought and demonstrates that anarchy need not be a lawless. Furthermore, it demonstrates that common disputes from contract violations to crimes against person or property can be handled in a non-coercive, voluntary manner by a system of protection agencies and private adjudication companies. The next and very different problem, according to

Rothbard, is how to arrive at that system. “At the very least,” he writes in the final paragraph of his essay “Society Without a State,” “it will not likely come about unless people are convinced of its workability, are convinced, in short, that the State is not a necessary evil.”268

267 Ibid., 45. For an example of what the negotiating process may look like, please see Friedman, “The Machinery of Freedom,” 45, especially ¶ 3.

268 Rothbard, “Society Without a State,” 7.

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