In my previous entry, I presented the popular belief that “the State protects our rights,” and demonstrated that rights are in fact inherent. So how can the State grant me that right when I already possess it by virtue of being a human being? Granted, the statist reasoning is somewhat more sophisticated than that. A statist will say, “rights may be intrinsic, but you need the State in order to protect the expression of your rights from criminal elements.” It may be true that a very small number of people do not recognize my right to walk around unmolested, and that I may need to be protected from such people. But this does not mean that anyone who protects me (let alone those who merely pretend to protect me, like the State’s agents) is confirming my rights, any more than a criminal could nullify them. At best, they can retaliate against people who refuse to recognize my rights and aggress me, thus affirming my pre-existing right by proxy.
Coming back to the role of natural rights. We can once again distinguish between social relationships and the social framework. Within the social framework, we may say something like: “no one shall steal property from anyone else.” This ensures that no one may take resources away from another, render him less able to live the way he wishes, and create social warfare. However, we also acknowledge the right of people to assemble together and agree to demand payment to each other for certain purposes. In that case, we would be faced not with theft but with a prior agreement. Pre-agreement, we call it theft, while post-agreement we may call it dues payable. As long as the individual is not bound to the agreement by force (i.e. against his rights), we say it is just for him to pay what he agreed to pay.
Rights necessarily exist, because in any society people will necessarily recognize some forms of action as legitimate, and others as illegitimate. Naturally people wish for their society to be protected from illegitimate actions, hence the need for justice. There are two basic means to implement justice, and I mentioned them in passing: diffuse sanctions (all non-religious, non-statist ways of resolving disputes, anywhere from gossip and arguing to arbitration and ostracism) and legal sanctions (punishment codified and inflicted by people holding a specific post and the authority to threaten violence in order to fulfill that post). This is a sociological distinction which aims to describe the ways in which justice is enforced within a society. A third type, supernatural sanctions, relates to religious belief but has little relevance to the religions of today.
Finally, there is the concept of law, or more generally, legal sanction. Diffuse sanction, and the social framework in general, is a bottom-up process: an emergent property of the interactions between individual values. Legal sanction is an opposite, top-down process: an attempt by people in positions of power to impose values on individuals by force or cajolery.
In practice, it is impossible to impose values by force or cajolery, however much parents try to do it to their children, religious fanatics to “sinners,” or politicians and bureaucrats to their subjects. But it is possible to induce false beliefs into people by constant indoctrination, propaganda, and monopolizing markets (which is in itself a form of propaganda), which themselves can manufacture consent and, in the long term, competing values.
What is the law? I am not entirely satisfied with the standard definition I gave earlier. It does not matter if a rule is not “properly” codified, if the agents of the State believe in it and enforce it. Likewise, it does not matter if a rule is “properly” codified but not enforced. It would therefore be more appropriate to define the law relatively to the crimes that the State’s agents commit, and not what they profess. We must divest ourselves of the belief that the State is concerned with enforcing a set of rules, and that this set of rules constrains private crimes and the State’s crimes. The main role of the mountains of tomes of law written by these politicians is, as Ayn Rand correctly points out in Atlas Shrugged:
[W]hen there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.
When the government has all the information it needs on all your possible crimes and infractions, and can dangle that fact in front of you to get you to jump through hoops, what you get is the virtual slavery of the rule of arbitrary law made omniscient.
On a purely theoretical level, one could say that the State is the law, and that the law is the State. I am not sure how defendable such a view would be, and I could be wrong on that point. But one can say without fear of being wrong that the State cannot exist without law, and that law cannot exist without the State. As such, we must be very careful when talking about “law without the State.” If we take both words at face value, this is an impossibility. However, as the wide variety of societies that have existed without State have demonstrated, the law is most decidedly not necessary for order, or even desirable. Granted, if we were arbitrary creatures with no fixed concept of justice, not having identified concepts such as murder or theft, or finding them morally neutral, the State might be perfectly adequate in providing order.
But if we were this world would be a very strange place indeed. It is clear that we are not such creatures, that we have an innate, natural, conception of justice, and that we can uncover its ramifications by a process of discovery. But if this is true, then how can arbitrary rules written in the name of ruling class interest possibly generate order? We know the State is a powerful criminal organization and that its agents commit crimes every day. We know the State is the biggest agency of murder, the biggest agency of rape, the biggest agency of kidnapping, the biggest agency of extortion, the biggest agency of pollution, the biggest agency of corruption in any society. So where is this vaunted “order”? The “order” of having a monopoly on crime? Fine “order” that is!
As such, we must make a sharp distinction between society and State. The State is not a social organization any more than the Catholic Church is a scientific organization. In fact, the State has the same relationship to society than the Church has to science: co-option when possible, otherwise attack and suppress. The concept of the “rule of law” is a minarchist chimera: rule can only be self-rule or other-rule, interior determinism or exterior determinism. There is no middle ground.