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Vices Are Not Crimes A Vindication Of Moral Liberty By Lysander Spooner Introduction by Murray N.

Vices Are Not Crimes

A Vindication Of Moral Liberty By Lysander Spooner

Introduction by Murray N. Rothbard

Lysander Spooner: Libertarian Pietist

We are all indebted to Carl Watner for uncovering an unknown work by the great Lysander Spooner, one that managed to escape the editor of Spooner's Collected Works . Both the title and the substance of "Vices are not Crimes" highlight the unique role that morality and moral principle had for Spooner among the anarchists and libertarians of his day. For Spooner was the last of the great natural rights theorists among anarchists, classical liberals, or moral theorists generally; the doughty old heir of the natural law-natural rights tradition of the seventeenth and eighteenth centuries was fighting a rear-guard battle against the collapse of the idea of a scientific or rational morality, or of the science of justice or of individual right. Not only had natural law and natural rights given way throughout society to the arbitrary rule of utilitarian calculation or nihilistic whim; but the same degenerative process had occurred among libertarians and anarchists as well. Spooner knew that the foundation for individual rights and liberty was tinsel if all values and ethics were arbitrary and subjective. Yet, even in his own anarchist movement Spooner was the last of the Old Guard believers in natural rights; his successors in the individualist-anarchist movement, led by Benjamin R. Tucker, all proclaimed arbitrary whim and might-makes-right as the foundation of libertarian moral theory. And yet, Spooner knew that this was no foundation at all; for the State is far mightier than any individual, and if the individual cannot use a theory of justice as his armor against State oppression, then he has no solid base from which to roll back and defeat it.

With his emphasis on cognitive moral principles and natural rights, Spooner must have looked hopelessly old-fashioned to Tucker and the young anarchists of the 1870s and 1880s. And yet now, a century later, it is the latters' once fashionable nihilism and tough amoralism that strike us as being empty and destructive of the very liberty they all tried hard to bring about. We are now beginning to recapture the once-great tradition of an objectively grounded rights of the individual. In philosophy, in economics, in social analysis, we are beginning to see that the tossing aside of moral rights was not the brave new world it once seemed — but rather a long and disastrous detour in political philosophy that is now fortunately drawing to a close.

Opponents of the idea of an objective morality commonly charge that moral theory functions as a tyranny over the individual. This, of course, happens with many theories of morality, but it cannot happen when the moral theory makes a sharp and clear distinction between the "immoral" and the "illegal", or, in Spooner's words, between "vices" and "crimes." The immoral or the "vicious" may consist of a myriad of human actions, from matters of vital importance down to being nasty to one's neighbor or to willful failure to take one's vitamins. But none of them should be confused with an action that should be "illegal," that is, an action to be prohibited by the violence of law. The latter, in Spooner's libertarian view, should be confined strictly to the initiation of violence against the rights of person and property. Other moral theories attempt to apply the law — the engine of socially legitimated violence — to compelling obedience to various norms of behavior; in contrast, libertarian moral theory asserts the immorality and injustice of interfering with any man's (or rather, any non-criminal man's) right to run his own life and property without interference. For the natural rights libertarian, then, his cognitive theory of justice is a great bulwark against the State's eternal invasion of rights — in contrast to other moral theories which attempt to employ the State to combat immorality.

It is instructive to consider Spooner and his essay in the light of the fascinating insights into nineteenth century American politics provided in recent years by the "new political history." While this new history has been applied for most of the nineteenth century, the best work has been done for the Midwest after the Civil War, in particular the brilliant study by Paul Kleppner, The Cross of Culture [1].

What Kleppner and others have shown is that the political ideas of Americans can be reduced, with almost remarkable precision, back to their religious attitudes and beliefs. In particular, their political and economic views depend on the degree to which they conform to the two basic poles of Christian belief: pietistic, or liturgical (although the latter might be amended to liturgical plus doctrinal.) Pietistic, by the 19 th century, meant all groups of Protestants except Episcopalian, High Church Lutheran, and orthodox Calvinist; liturgical meant the latter plus Roman Catholic. (And "pietistic" attitudes, often included deist and atheist.) Briefly, the pietist tends to hold that to be truly religious, a person must experience an emotional conversion; the convert, in what has been called "the baptism of the Holy Spirit", has a direct relationship to God or to Jesus. The liturgical, on the other hand, is interested in either doctrinal belief or the following of prescribed church ritual as the key to salvation.

Now, it might seem as if the pietistic emphasis on the individual might lead to a political individualism, to the belief that the State may not interfere in each individual's moral choices and actions. In 17th century pietism, it often meant just that. But by the 19th century, unfortunately, such was not the case. Most pietists took the following view: Since we can't gauge an individual's morality by his following rituals or even by his professed adherence to creed, we must watch his actions and see if he is really moral. From there the pietists concluded that it was everyone's moral duty to his own salvation to see to it that his fellow men as well as himself are kept out of temptation's path. That is, it was supposed to be the State's business to enforce compulsory morality, to create the proper moral climate for maximizing salvation. In short, instead of an individualist, the pietist now tended to become a pest, a busybody, a moral watchdog for his fellow-man, and a compulsory moralist using the State to outlaw "vice" as well as crime.

The liturgicals, on the other hand, took the view that morality and salvation were to be achieved by following the creed and the rituals of their church. The experts on those church beliefs and practices were, of course, not the State but the priests or bishops of the church (or, in the case of the few orthodox Calvinists, the ministers.) The liturgicals, secure in their church teachings and practices, simply wanted to be left alone to follow the counsel of their priests; they were not interested in pestering or forcing their fellow human beings into being saved. And they believed profoundly that morality was not the business of the State, but only of their own church mentors.

From the 1850's to the 1890's the Republican party was almost exclusively the pietist party, known commonly as the "party of great moral ideas"; the Democratic party, on the other hand, was almost exclusively the liturgical party, and was known widely as the "party of personal liberty." Specifically, after the Civil War there were three interconnected local struggles that kept reappearing throughout America; in each case, the Republicans and Democrats played out this contrasting role. These were: the attempt by pietist groups (almost always Republican) to enforce prohibition; the attempt by the same groups to enforce Sunday blue laws; and the attempt by the selfsame pietists to enforce compulsory attendance in the public schools, in order to use these schools to "Christianize" the Catholics.

What of the political and economic struggles that historians have, until recently, focused on almost exclusively: sound money vs. fiat money or silver inflation; free trade vs. a protective tariff; free markets vs. government regulation; small vs. large government spending? It is true that these were

fought out repeatedly, but these were on the national level, and generally remote from the concerns of the average person. I have long wondered how it was that the nineteenth century saw the mass of the public get highly excited about such recondite matters as the tariff, bank credits, or the currency. How could that happen when it is almost impossible to interest the mass of the public in these matters today? Kleppner and the others have provided the missing link, the middle term between these abstract economic issues and the gut social issues close to the hearts and lives of the public. Specifically, the Democrats, who (at least until 1896) favored the free-market, libertarian position on all these economic issues, linked them (and properly so) in the minds of their liturgical supporters, with their opposition to prohibition, blue laws, etc. The Democrats pointed out that all these statist economic measures —

including inflation — were "paternalistic" in the same way as

the hated pietistic invasions of their

personal liberty. In that way, the Democrat leaders were able to "raise the consciousness" of their

followers from their local and personal concerns to wider and more abstract economic issues, and to take the libertarian position on all of them.

The pietist Republicans did similarly for their mass base, pointing out that big government should regulate and control economic matters as it should control morality. In this stance, the Republicans followed in the footsteps of their predecessors, the Whigs, who, for example, were generally the Fathers of the Public School System in their local areas.

Generally, the "mind your own business" liturgicals almost instinctively took the libertarian position on every question. But there was of course one area — before the Civil War — where pestering and hectoring were needed to right a monstrous injustice: slavery. Here the typical pietistic concern with universal moral principles and seeing them put into action brought us the abolitionist and anti-slavery movements. Slavery was the great flaw in the American system in more senses than one: for it was also the flaw in the instinctive liturgical resentment against great moral crusades.

To return now to Lysander Spooner. Spooner, born in the New England pietist tradition, began his distinguished ideological career as an all-out abolitionist. Despite differences over interpretation of the U.S. Constitution. Spooner was basically in the anarchistic, "no-government" Garrisonian wing of the abolitionist movement — the wing that sought the abolition of slavery not through the use of the central government (which was in any case dominated by the South), but by a combination of moral fervor and slave rebellion. Far from being fervent supporters of the Union, the Garrisonians held that the northern states should secede from a pro-slaveholding United States of America.

So far, Spooner and the Garrisonians took the proper libertarian approach toward slavery. But the

tragic betrayal came when the Union went to war with the Southern states over the issue of their declared independence. Garrison and his former "no-government" movement forgot their anarchistic principles in their enthusiasm for militarism, mass murder, and centralized statism on behalf of what they correctly figured would be a war against slavery. Only Lysander Spooner and a very few others stood foursquare against this betrayal; only Spooner realized that it would be compounding crime and error to try to use government to right the wrongs committed by another government. And so, among his pietistic and moralizing anti-slavery colleagues, only Spooner was able to see with shining clarity,

despite all temptations, the stark difference between vice and crime. He

saw that it was correct to

denounce the crimes of governments, but that it was only compounding those crimes to maximize

government power as an attempted remedy. Spooner never followed other pietists in endorsing crime or in trying to outlaw vice.

Spooner's anarchism was, like his abolitionism, another valuable part of his pietist legacy. For, here again, his pietistic concern for universal principles — in this case, as in the case of slavery, for the complete triumph of justice and the elimination of injustice — brought him to a consistent and courageous application of libertarian principles where it was not socially convenient (to put it mildly) to have the question raised. While the liturgicals proved to be far more libertarian that the pietists during the second half of the nineteenth century, a pietistic spirit is always important in libertarianism to emphasize a tireless determination to eradicate crime and injustice. Surely it is no accident that Spooner's greatest and most fervent anarchistic tracts were directed in dialogue against the Democrats Cleveland and Bayard; he did not bother with the openly statist Republicans. A pietistic leaven in the quasi-libertarian liturgical lump?

But it takes firmness in libertarian principle to make sure to confine one's pietistic moral crusade to crime (e.g. slavery, statism), and not have it spill over to what anyone might designate as "vice." Fortunately, we have the immortal Lysander Spooner, in his life and in his works, to guide us along the correct path.

Murray N. Rothbard

Los Altos, California

__________

[1] Paul Kleppner, The Cross of Culture: A Social Analysis of Midwestern Politics, 1850-1900 (New York: Free Press, 1970). Also see Richard Jensen, The Winning of the Midwest: Social and Political Conflicts, 1888-1896 (Chicago: University of Chicago Press, 1971).

Vices Are Not Crimes

A Vindication Of Moral Liberty By Lysander Spooner

I.

Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vice s are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime --- that is, the design to injure the person or property of another --- is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practises his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual 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 rights of another man to the control of his own person and property.

For a government 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 truth to be falsehood, or falsehood truth.

II.

Every voluntary act of a man’s life is either virtuous or vicious. That is to say, it is either in accordance, or in conflict, with those natural laws of matter and mind, on which his physical, mental, and emotional health and well-being depend. In other words, every act of his life tends, on the whole, either to his happiness, or to his unhappiness. No single act in his whole existence is indifferent.

Furthermore, each human being differs in his physical, mental, and emotional constitution, and also in the circumstances by which he is surrounded, from every other human being. Many acts, therefore, that are virtuous, and tend to happiness, in the case of one person, are vicious, and tend to unhappiness, in the case of another person.

Many acts, also, that are virtuous, and tend to happiness, in the case of one man, at one time, and under one set of circumstances, are vicious, and tend to unhappiness, in the case of the same man, at another time, and under other circumstances.

III.

To know what actions are virtuous, and what vicious --- in other words, to know what actions tend, on the whole, to happiness, and what to unhappiness --- in the case of each and every man, in each and all the conditions in which they may severally be placed, is the profoundest and most complex study to which the greatest human mind ever has been, or ever can be, directed. It is, nevertheless, the constant study to which each and every man --- the humblest in intellect as well as the greatest --- is necessarily driven by the desires and necessities of his own existence. It is also the study in which each and every person, from his cradle to his grave, 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.

IV.

It is not often possible to say of those acts that are called vices, that they really are vices, except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point . The question of virtue or vice, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s --- except each individual for himself --- drawing any accurate line, or anything like any accurate line, between virtue and vice; that is, of telling where virtue ends, and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself.

V .

Vices are usually pleasurable, at least for the time being, and often do not disclose themselves as vices, by their effects, until after they have been practised for many years; perhaps for a lifetime. To many, perhaps most, of those who practise them, they do not disclose themselves as vices at all during life. Virtues, on the other band, often appear so harsh and rugged, they require the sacrifice of so much present happiness, at least, and the results, which alone prove them to be virtues, are often so distant and obscure, in fact, so absolutely invisible to the minds of many, especially of the young, that, from the very nature of things, there can be no universal, or even general, knowledge that they are virtues. In truth, the studies of profound philosophers have been expended --- if not wholly in vain, certainly with very small results --- in efforts to draw the lines between the virtues and the vices.

If, then, it became so difficult, so nearly impossible, in most cases, to determine what is, and what is not, vice; and especially if it be so difficult, in nearly all cases, to determine where virtue ends, and vice begins; and if these questions, which no one can really and truly determine for anybody but himself, are not to be left free and open for experiment by all, each person is deprived of the highest of all his rights as a human being, to wit: his right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is, to him , vice; in other words: what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness. If this great right is not to be left free and open to all, then each man’s whole right, as a reasoning human being, to" liberty and the pursuit of happiness," is denied him.

VI.

We all come into the world in ignorance of ourselves, and of everything around us. By a fundamental law of our natures we are all constantly impelled by the desire of happiness, and the fear of pain. But we have everything to learn, as to what will give us happiness, and save us from pain. No two of us are wholly alike, either physically, mentally, or emotionally; or, consequently, in our physical, mental, or emotional requirements for the acquisition of happiness, and the avoidance of unhappiness. No one of us, therefore, can learn this indispensable lesson of happiness and unhappiness, of virtue and vice, for another. Each must learn it for himself. 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. He gathers wisdom as much from his failures as from his successes; from his so-called vices, as from his so-called virtues. Both are necessary to his acquisition of that knowledge --- of his own nature, and of the world around him, and of their adaptations or non-adaptations to each other --- which shall show him how happiness is acquired, and pain avoided. And, unless he can be permitted to try these experiments to his own satisfaction, he is restrained from the acquisition of knowledge, and, consequently, from pursuing the great purpose and duty of his life.

VII.

A man is under no obligation to take anybody’s word, or yield to anybody authority, on a matter so vital to himself, and in regard to which no one else has, or can have, any such interest as he. He cannot , if he would, safely rely upon the opinions of other men, because be finds that the opinions of other men do not agree. Certain actions, or courses of action, have been practised by many millions of men, through successive generations, and have been held by them to be, on the whole, conducive to happiness, and therefore virtuous. Other men, in other ages or countries, or under other condition, have held, as the result of their experience and observation, that these actions tended, on the whole, to unhappiness, and were therefore vicious. The question of virtue or vice, as already remarked in a previous section, has also been, in most minds, a question of degree; that is, of the extent to which certain actions should be carried; and not of the intrinsic character of any single act, by itself. The questions of virtue and vice have therefore been as various, and, in fact, as infinite, as the varieties of mind, body, and condition of the different individuals inhabiting the globe. And the experience of ages has left an infinite number of these questions unsettled. In fact, it can scarcely be said to have settled any of them.

VIII.

In the midst of this endless variety of opinion, what man, or what body of men, has the right to say, in regard to any particular action, or course of action, " We have tried this experiment, and determined every question involved in it? We have determined it, not only for ourselves, but for all others? And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion? We will suffer no further experiment or inquiry by any one, and, consequently, no further acquisition of knowledge by anybody?"

Who are the men who have the right to say this? Certainly there none such. The men who really do say it, are either shameless impostors and tyrants, who would stop the progress of knowledge , and usurp absolute control over the minds and bodies of their fellow men; and are therefore to resisted instantly, and to the last extent; or they are themselves too ignorant of their own weaknesses, and of their true relations to other men, to be entitled to any other consideration than sheer pity or contempt.

We know, however, that there are such men as these in the world. Some of them attempt to exercise their power only within a small sphere, to wit, upon their children, their neighbors, their townsmen, and their countrymen. Others attempt to exercise it on a larger scale. For example, an old man at Rome, aided by a few subordinates, attempts to decide all questions of virtue and vice; that is, of truth or falsehood, especially in matters of religion. He claims to know and teach what religious ideas and practices are conducive, or fatal, to a man’s happiness, not only in this world, but in that which is to come. He claims to be miraculously inspired for the performance of this work; thus virtually acknowledging, like a sensible man, that nothing short of miraculous inspiration would qualify him for it. This miraculous inspiration, however, has been ineffectual to enable him to settle more than a very few questions. The most important to which common mortals can attain, is an implicit belief in his (the pope’s) infallibility! and, secondly, that the blackest vices of which they can be guilty are to believe and declare that he is only a man like the rest of them!

It required some fifteen or eighteen hundred years to enable him to reach definite conclusions on these two vital points. Yet it would seem that the first of these must necessarily be preliminary to his settlement of any other questions; because, until his own infallibility is determined, he can authoritatively decide nothing else. He has, however, heretofore attempted or pretended to settle a few others. And he may, perhaps, attempt or

pretend to settle a few more in the future, if he shall continue to find anybody to

listen to him. But his success, thus

far, certainly does not

encourage the belief that he will be able to settle all questions of virtue and vice, even in his peculiar department of religion, in time to meet the

necessities of mankind. He, or his successors, will undoubtedly be compelled, at no distant day, to acknowledge that he has undertaken a task to

which all his miraculous inspiration was inadequate; and that, of necessity, each human being must be left to settle all questions of this kind for

himself. And it is not unreasonable to expect that all other popes, in other

and lesser spheres, will some time have cause to come to the same

conclusion. No one, certainly, not claiming supernatural inspiration, should undertake a task to which obviously nothing less than such inspiration is adequate. And, clearly, no one should surrender his own judgment to the teachings of others, unless he be first convinced that these others have something more than ordinary human knowledge on this subject.

If those persons, who fancy themselves gifted with both the power and the right to define and punish other men’s vices, would but turn their thoughts inwardly, they would probably find that they have a great work to do at home; and that, when that shall have been completed, they will be little disposed to do more towards correcting the vices of others, than simply to give to others the results of their experience and observation. In this sphere their labors may possibly be useful; but, in the sphere of infallibility and coercion, they will probably, for well-known reasons, meet with even less success in the future than such men have met with in the past.

IX.

It is now obvious, from the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices, and punish them as crimes. Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds; physiological, mental, emotional; religious, social, commercial, industrial, economical, &c., &c. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially. The consequence would be, that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested: for we should all be under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious prison than they ever have been out of it.

X.

A government that shall punish all vices impartially is so obviously an impossibility, that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or at most a few, of what he esteems the grossest of them. But this discrimination an utterly absurd, illogical, and tyrannical one. What right has any body of men to say, "The vices of other men we will punish; but our own vices nobody 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?"

Nobody but knaves or blockheads ever thinks of making such absurd assumptions as these. And yet, evidently, it is only upon such assumptions that anybody can claim the right to punish the vices of others, and at the same time claim exemption from punishment for his own.

XI.

Such a thing as a government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices, impartially; because nobody wants such an institution, or would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes is a reasonable matter; because everybody wants protection for himself against all crimes by others, and also acknowledges the justice of his own punishment, if he commits a crime.

XII.

It is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals. Now, nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But anybody and everybody have a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right, not only to defend his own person and property against aggressors, but also to go to the assistance and defence of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defence of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals. But the idea that each man has a natural right to decide what are virtues, and what are vices --- that is, what contributes to that neighbors happiness, and what do not --- and to punish him for all that do not contribute to it; is what no one ever had the impudence or folly to assert. It is only those who claim that government has some rightful power, which no individual or individuals ever did, or could, delegate to it, that claim that government has any rightful power to punish vices.

It will do for a pope or a king --- who claims to have received direct authority from Heaven, to rule over his fellow-men --- to claim the right, as the vicegerent of God, to punish men for their vices; but it is a sheer and utter absurdity for any government, claiming to derive its power wholly from the grant of the governed, to claim any such power; because everybody knows that the governed never would grant it. For them to grant it would be an absurdity, because it would be granting away their own right to seek their own happiness; since to grant away their right to judge of what will be for their happiness, is to grant away all their right to pursue their own happiness.

XIII.

We can now see how simple, easy, and reasonable a matter is a government is for the punishment of crimes , as compared with one for the punishment of vices. Crimes are few, and easily distinguished from all other acts; and mankind are generally agreed as to what acts are crimes. Whereas vices are innumerable; and no two persons are agreed, except in comparatively few cases, as to what are vices. Furthermore, everybody wishes to be protected, into his person and property, against the aggressions of other men. But nobody wishes to be protected, either in his person or property, against himself; because it is contrary to the fundamental laws of human nature itself, that any one should wish to harm himself. He only wishes to promote his own happiness, and to be his own judge as to what will promote, and does promote, his own happiness. This is what every one wants, and has a right to, as a human being. And though we all make many mistakes, and necessarily must make them, from the imperfection of our knowledge, yet these mistakes are no argument against the right; because they all tend to give us the very knowledge we need, and are in pursuit of, and can get in no other way.

The object aims at in the punishment of crimes , therefore, is not only wholly different from, but it is directly opposed to, that aimed at in the punishment of vices.

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.

These two objects, then, are directly opposed to each other. They are as directly opposed to each other as are light and darkness, or as truth and falsehood, or as liberty and slavery. They are utterly incompatible with each other; and to suppose the two to be embraced in one and the same government, is an absurdity, an impossibility. It is to suppose the objects of a government to be to commit crimes, and to prevent crimes; to destroy individual liberty, and to secure individual liberty.

XIV.

Finally, on this point of individual liberty: every man must necessarily judge and determine for himself as to what is conducive and necessary to, and what is destructive of, his own well-being; because, if he omits to perform this task for himself, nobody else can perform it for him. And nobody else will even attempt to perform it for him, except in very few cases. Popes, and priests, and kings will assume to perform it for him, in certain cases, if permitted to do so. But they will, in general, perform it only in so far as they can minister to their own vices and crimes, by doing it. They will, in general, perform it only in so far as they can make him their fool and their slave. Parents, with better motives, no doubt, than the others, too often attempt the same work. But in so far as they practise coercion, or restrain a child from anything not really and seriously dangerous to himself, they do him a harm, rather than a good. It is a law of Nature that to get knowledge, and to incorporate that knowledge into his own being, each individual must get it for himself. Nobody, not even his parents, can tell him the nature of fire, so that he will really know it. He must himself experiment with it, and be burnt by it, before he can know it.

Nature knows, a thousand times better than any parent, what she designs each individual for, what knowledge he requires, and how he must get it. She knows that her own processes for communicating that knowledge are not only the best, but the only ones that can be effectual.

The attempts of parents to make their children virtuous generally little else than attempts to keep them in ignorance of vice. They are little else than attempts to teach their children to know and prefer truth, by keeping them in ignorance of falsehood. They are little else than attempts to make them seek and appreciate health, by keeping them in ignorance of disease, and of everything that will cause disease. They are little else than attempts to make their children love the light, by keeping them in ignorance of darkness. In short, they are little else than attempts to make their children happy, by keeping them in ignorance of everything that causes them unhappiness.

In so far as parents can really aid their children in the latter’s search after happiness, by simply giving them the results of their (the parents’) own reason and experience, it is all very well, and is a natural and appropriate duty. But to practise coercion in matters of which the children are reasonably competent to judge for themselves, is only an attempt to keep them in ignorance. And this is as much a tyranny, and as much a violation of the children’s right to acquire knowledge for themselves, and such knowledge as they desire, as is the same coercion when practised upon older persons. Such coercion, practised upon children, is a denial of their right to develop the faculties that Nature has given them, and to be what Nature designs them to be. It is a denial of their right to themselves, and to the use of their own powers. It is a denial of their right to acquire the most valuable of all knowledge, to wit, the knowledge that Nature, the great teacher, stands ready to impart to them.

The results of such coercion are not to make the children wise or virtuous, but to make them ignorant, and consequently weak and vicious; and to perpetuate through them, from age to age, the ignorance, the superstitions, the vices, and the crimes of the parents. This is proved by every page of the world’s history.

Those who hold opinions opposite to these, are those whose false and vicious theologies, or whose own vicious general ideas, have taught them that the human race are naturally given to evil, rather than good; to the false, rather than the true; that mankind do not naturally turn their eyes to the light; that they love darkness, rather than light; and that they find their happiness only in those things that tend to their misery.

XV.

But these men, who claim that government shall use its power to prevent vice, will say, or are in the habit of saying, "We acknowledge the right of an individual to seek his own happiness in his own way, and consequently to be as vicious as be pleases; we only claim that government shall prohibit the sale to him of those articles by which he ministers to his vice."

The answer to this is, that the simple sale of any article whatever --- independently of the use that is to be made of the article --- is legally a perfectly innocent act. The quality of the act of sale depends wholly upon the quality of the use for which the thing is sold. If the use of anything is virtuous and lawful, then the sale of it, for that use , is virtuous and lawful. If the use is vicious, then the sale of it, for that use , is vicious. If the use is criminal, then the sale of it, for that use, is criminal. The seller is, at most, only an accomplice in the use that is to be made of the article sold, whether the use be virtuous, vicious, or criminal. Where the use is criminal, the seller is an accomplice in the crime, and punishable as such. But where the use is only vicious, the seller is only an accomplice in the vice, and is not punishable.

XVI.

But it will be asked, "Is there no right, on the part of government, to arrest the progress of those who are bent on self-destruction?"

The answer is, that government has no rights whatever in the matter, so long as these so-called vicious persons remain sane, compos mentis, capable of exercising reasonable discretion and self-control; because, so long as they do remain sane, they must be allowed to judge and decide for themselves whether their so-called vices really are vices; whether they really are leading them to destruction; and whether, on the whole, they will go there or not. When they shall become insane, non compos mentis , incapable of reasonable discretion or self-control, their friends or neighbors, or the government, must take care of them, and protect them from harm, and against all persons who would do them harm, in the same way as if their insanity had come upon them from any other cause than their supposed vices.

But because a man is supposed, by his neighbors, to be on the way to self-destruction, from his vices, it does not, therefore, follow that he is insane, non compos mentis , incapable of reasonable discretion and self-control, within the legal meaning of those terms. Men and women may be addicted to very gross vices, and to a great many of them --- such as gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco- chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c. --- and still be sane, compos mentis , capable of reasonable discretion and self-control, within the meaning of the law. And so long as they are sane, they must be permitted to control themselves and their property, and to be their own judges as to where their vices will finally lead them. It may be hoped by the lookers-on, in each individual case, that the vicious person will see the end to which he is tending, and be induced to turn back. But, if he chooses to go on to what other men call destruction, be must be permitted to do so. And all that can be said of him,so far as this life is concerned, is, that he made a great mistake in his search after happiness, and that others will do well to take warning by his fate. As to what maybe his condition in another life, that is a theological question with which the law, in this world, has no more to do than it has with any other theological question, touching men’s condition in a future life.

If it be asked how the question of a vicious man’s sanity or insanity is to be determined? The answer is, that it is to be determined by the same kinds of evidence as is the sanity or insanity of those who are called virtuous; and not otherwise. That is, by the same kinds of evidence by which the legal tribunals determine whether a man should be sent to an asylum for lunatics, or whether he is competent to make a will, or otherwise dispose of his property. Any doubt must weigh in favor of his sanity, as in all other cases, and not of his insanity.

If a person really does become insane, non compos mentis , incapable of reasonable discretion or self-control, it is then a crime, on the part of other men, to give to him or sell to him, the means of self-injury. 1There are no crimes more easily punished, no cases in which juries would be more ready to convict, than those where a sane person should sell or give to an insane one any article with which the latter was likely to injure himself.

XVII.

But it will be said that some men are made, by their vices, dangerous to other persons; that a drunkard, for example, is sometimes quarrelsome and dangerous toward his family or others. And it will be asked, "Has the law nothing to do in such a case?"

The answer is, that if, either from drunkenness or any other cause, a man be really dangerous, either to his family or to other persons, not only himself may be rightfully restrained, so far as the safety of other persons requires, but all other person --- who know or have reasonable grounds to believe him dangerous --- may also be restrained from selling or giving to him anything that they have reason to suppose will make him dangerous.

But because one man becomes quarrelsome and dangerous after drinking spirituous liquors, and because it is a crime to give or sell liquor to such a man, it does not follow at all that it is a crime to sell liquors to the hundreds and thousands of other persons, who are not made quarrelsome or dangerous by drinking them. Before a man can be convicted of crime in selling liquor to a dangerous man, it must be shown that the particular man, to whom the liquor was sold, was dangerous; and also that the seller knew, or had reasonable grounds to suppose, that the man would be made dangerous by drinking it.

The presumption of law is,in all cases, that the sale is innocent; and the burden of proving it criminal, in any particular case, rests upon the government. And that particular case must be proved criminal, independently of all others.

Subject to these principles, there is no difficulty convicting and punishing men for the sale or gift of any article to a man, who is made dangerous to others by the use of it.

XVIII.

But it is often said that some vices are nuisances (public or private), and that nuisances can be abated and punished.

It is true that anything that is really and legally a nuisaance (either public or private) can be abated and punished. But it is not true that the mere private vices of one man are, in any legal sense, nuisances to another man, or to the public.

No act of one person can be a nuisance to another, unless it in some way obstructs or interferes with that other’s safe and quiet use or enjoyment of what is rightfully his own.

Whatever obstructs a public highway, is a nuisance, and may be abated and punished. But a hotel where liquors are sold, a liquor store, or even a grog-shop, so called, no more obstructs a public highway, than does a dry goods store, a jewelry store, or a butcher’s shop.

Whatever poisons the air, or makes it either offensive or unhealthful, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop poisons the air, or makes it offensive or unhealthful to outside persons.

Whatever obstructs the light, to which a man is legally entitled, is a nuisance. But neither a hotel, nor a liquor store, nor a grog-shop, obstructs anybody’s light, except in cases where a church, a school-house, or a dwelling house would have equally obstructed it. On this ground, therefore, the former are no more, and no less, nuisances than the latter would be.

Some persons are in the habit of saying that a liquorshop is dangerous, in the same way that gunpowder is dangerous. But there is no analogy between the two cases. Gunpowder is liable to be exploded by accident, and especially by such fires as often occur in cities. For these reasons it is dangerous to persons and property in its immediate vicinity. But liquors are not liable to be thus exploded, and therefore are not dangerous nuisances, in any such sense as is gunpowder in cities.

But it is said, again, that drinking-places are frequently filled with noisy and boisterous men, who disturb the quiet of the neighborhood, and the sleep and rest of the neighbors.

This may be true occasionally, though not very frequently. But whenever, in any case, it is true, the nuisance may be abated by the punishment of

the proprietor and his customers, and if need be, by shutting up the place. But an assembly of noisy drinkers is no more a nuisance than is any other noisy assembly. A jolly or hilarious drinker disturbs the quiet of a neighbor-hood no more, and no less, than does a shouting religious fanatic. An assembly of noisy drinkers is no more, and no less, a nuisance than is an assembly of shouting religious fanatics. Both of them are nuisances when

they disturb the rest and sleep, or quiet, of neighbors. Even a dog that is given neighborhood, is a nuisance.

to barking, to

the disturbance

of the sleep

or quiet

of the

XIX.

But it is said, that for one person to entice another into a vice, is a crime.

This is preposterous. If any particular act is simply a vice , then a man who entices another to commit it, is simply an accomplice in the . He evidently commits no crime, because the accomplice can certainly commit no greater offence than the principal.

Every person who is sane, compos mentis, possessed of reasonable discretion and self-control, is presumed to be mentally competent to judge for himself of all the arguments, pro and con, that may be addressed to him, to persuade him to do any particular act; provided no fraud is employed to deceive him. And if he is persuaded or induced to do the act, his act is then his own; and even though the act prove to be harmful to himself, he cannot complain that the persuasion or arguments, to which he yielded his assent, were crimes against himself.

When fraud is practised, the case is, of course, different. If, for example, I offer a man poison, assuring him that it is a safe and wholesome drink, and he, on the faith of my assertion, swallows it, my act is a crime.

Volenti non fit injuria , is a maxim of the law. To the willing, no injury is done . That is, no legal wrong. And every person who is sane, compos mentis , capable of exercising reasonable discretion in judging of the truth or falsehood of the representations or persuasion to which be yields his assent, is "willing," in the view of the law; and takes upon himself the entire responsibility for his acts, when no intentional fraud has been practised upon him.

This principle, that to the willing no

injury is done , has no limit, except in the case of frauds, or of persons not possessed of reasonable

discretion for judging in the particular case. If a person possessed of reasonable discretion, and not deceived by fraud, consents to practise the grossest vice, and thereby brings upon himself the greatest moral, physical, or pecuniary sufferings or losses, he cannot allege that he has been legally wronged. To illustrate this principle, take the case of rape. To have carnal knowledge of a woman, against her will, is the highest crime, next to murder, that can be committed against her. But to have carnal knowledge of her, with her consent , is no crime; but at most, a vice. And it is usually holden that a female child, of no more than ten years of age, has such reasonable discretion, that her consent, even though procured by rewards, or promises of reward, is sufficient to convert the act, which would otherwise be a high crime, into a simple act of vice. 2

We see the same principle in the case of prize-fighters. If I but lay one of my fingers upon another man’s person, against his will, no matter how lightly, and no matter how little practical injury is done, the act is a crime. But if two men agree to go out and pound each other’s faces to a jelly, it is no crime, but only a vice.

Even duels have not generally been considered crimes, because each man’s life is his own, and the parties agree that each may take the other’s life, if he can, by the use of such weapons as are agreed upon, and in conformity with certain rules that are also mutually assented to.

And this is a correct view of the matter, unless it can be said (as it probably cannot), that "anger is a madness" that so far deprives men of their reason as to make them incapable of reasonable discretion.

Gambling is another illustration of the principle that to the willing no injury is done. If I take but a single cent of a man’s property, without his consent , the act is a crime. But if two men, who are compos mentis, possessed of reasonable discretion to judge of the nature and probable results of their act, sit down together, and each voluntarily stakes his money against the money of another, on the turn of a die, and one of them loses his whole estate (however large that may be), it is no crime, but only a vice.

It is not a crime, even, to assist a person to commit suicide, if he be in possession of his reason.

It is a somewhat common idea that suicide is, of itself, conclusive evidence of insanity. But, although it may ordinarily be very strong evidence of insanity, it is by no means conclusive in all cases. Many persons, in undoubted possession of their reason, have committed suicide, to escape the shame of a public exposure for their crimes, or to avoid some other great calamity. Suicide, in these cases, may not have been the highest wisdom, but it certainly was not proof of any lack of reasonable discretion. 3And being within the limits of reasonable discretion, it was no crime for other persons to aid it, either by furnishing the instrument or otherwise. And if, in such cases, it be no crime to aid a suicide, how absurd to say that, it is a crime to aid him in some act that is really pleasurable, and which a large portion of mankind have believed to be useful?

XX.

But some persons are in the habit of saying

that the use of spirituous liquors

criminals;" and that this is reason enough for prohibiting the sale of them.

is the great

source of crime; that

"it fills our prisons with

Those who say this, if they talk seriously, talk blindly and foolishly. They evidently mean to be understood as saying that a very large percentage of all the crimes that are committed among men, are committed by persons whose criminal passions are excited, at the time , by the use of liquors, and in consequence of the use of liquors.

This idea is utterly preposterous.

In the first place, the great crimes committed in the world are mostly prompted by avarice and ambition.

The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.

The next greatest crimes committed in the world are equally prompted by avarice and ambition; and are committed, not on sudden passion, but by men of calculation, who keep their heads cool and clear, and who have no thought whatever of going to prison for them. They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is by unjust and unequal legislation,

to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement. 4 The robberies and wrongs thus committed by these men, in conformity with the laws ,--- that is, their own laws --- are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.

But, thirdly, there are vast numbers of frauds, of various kinds, committed in the transactions of trade, whose perpetrators, by their coolness and

sagacity,

evade the operation of

the laws.

And it

is only

their cool and clear heads that enable them

to do it. Men under the excitement of

intoxicating drinks are little disposed, and utterly unequal, to the successful practice of these frauds. They are the most incautious, the least

successful, the least efficient, and the least to be feared , of all the criminals with whom the laws have to deal.

Fourthly. The professed burglars, robbers, thieves, forgers, counterfeiters, and swindlers, who prey upon society, are anything but reckless drinkers. Their business is of too dangerous a character to admit of such risks as they would thus incur.

Fifthly. The crimes that can be said to be committed under the influence of intoxicating drinks are mostly assaults and batteries, not very numerous, and generally not very aggravated. Some other small crimes, as petty thefts, or other small trespasses upon property, are sometimes committed, under the influence of drink, by feebleminded persons, not generally addicted to crime. The persons who commit these two kinds of crime are but few. They cannot be said to "fill our prisons"; or, if they do, we are to be congratulated that we need so few prisons and so small prisons, to hold them.

The State of Massachusetts, for example, has a million and a half of people. How many of these are now in prison for crimes— not for the vice of intoxication, but for crimes— committed against persons or property under the instigation of strong drink? I doubt if there be one in ten thousand, that is, one hundred and fifty in all; and the crimes for which these are in prison are mostly very small ones.

And I think it will be found that these few men are generally much more to be pitied than punished, for the reason that it was their poverty and misery, rather than any passion for liquor, or for crime, that led them to drink, and thus led them to commit their crimes under the influence of drink.

The sweeping charge that drink "fills our prisons with criminals" is made, I think, only by those men who know no better than to call a drunkard a criminal; and who have no better foundation for their charge than the shameful fact that we are such a brutal and senseless people, that we condemn and punish such weak and unfortunate persons as drunkards, as if they were criminals.

The legislators who authorize, and the judges who practise, such atrocities as these, are intrinsically criminals; unless their ignorance be such --- as it probably is not --- as to excuse them. And, if they were themselves to be punished as criminals, there would be more reason in our conduct.

A police judge in Boston once told me that he was in the habit of disposing of drunkards (by sending them to prison for thirty days --- I think that was the stereotyped sentence) at the rate of one in three minutes!, and sometimes more rapidly even than that; thus condemning them as criminals, and sending them to prison, without merry, and without inquiry into circumstances, for an infirmity that entitled them to compassion and protection, instead of punishment. The real criminals in these cases were not the men who went to prison, but the judge, and the men behind him, who sent them there.

I recommend to those persons, who are so distressed lest the prisons of Massachusetts be filled with criminals, that they employ some portion, at least, of their philanthropy in preventing our prisons being filled with persons who are not criminals. I do not remember to have heard that their sympathies have ever been very actively exercised in that direction. On the contrary, they seem to have such a passion for punishing criminals, that they care not to inquire particularly whether a candidate for punishment really be a criminal. Such a passion, let me assure them, is a much more dangerous one, and one entitled to far less charity, both morally and legally, than the passion for strong drink. It seems to be much more consonant with the merciless character of these men to send an unfortunate man to prison for drunkenness, and thus crush, and degrade, and dishearten him, and ruin him for life, than it does for them to lift him out of the poverty and misery that caused him to become a drunkard.

It is only those persons who have either little capacity, or little disposition, to enlighten, encourage, or aid mankind, that are possessed of this violent passion for governing, commanding, and punishing them. If, instead of standing by, and giving their consent and sanction to all the laws by which the weak man is first plundered, oppressed, and disheartened, and then punished as a criminal, they would turn their attention to the duty of defending his rights and improving his condition, and of thus strengthening him, and enabling him to stand on his own feet, and withstand the temptations that surround him, they would, I think, have little need to talk about laws and prisons for either rum-sellers or rum-drinkers, or even any other class of ordinary criminals. If, in short, these men, who are so anxious for the suppression of crime, would suspend, for a while, their calls upon the government for aid in suppressing the crimes of individuals, and would call upon the people for aid in suppressing the crimes of the government, they would show both their sincerity and good sense in a much stronger light than they do now. When the laws shall all be so just and equitable as to make it possible for all men and women to live honestly and virtuously, and to make themselves comfortable and happy, there will be much fewer occasions than now for charging them with living dishonestly and viciously.

XXI.

But it will be said, again, that the use of spirituous liquors tends to poverty and thus to make men paupers, and burdensome to the taxpayers; and that this is a sufficient reason why the sale of them should be prohibited.

There are various answers to this argument.

  • 1. One answer is, that if the fact that the use of liquors tends to poverty and pauperism, be a sufficient reason for prohibiting the sale of them, it

is equally a sufficient reason for prohibiting the use of them; for it is the use, and not the sale , that tends to poverty. The seller is, at most, merely

an accomplice of the drinker. And it is a rule of law, as well as of reason, that if the principal in any act is not punishable, the accomplice cannot be.

  • 2. A second answer to the argument is, that if government has the right, and is bound, to prohibit any one act --- that is not criminal ---

merely because it is supposed to tend to poverty, then, by the same rule, it has the right, and is bound, to prohibit any and every other act --- though not criminal --- which, in the opinion of the government, tends to poverty. And, on this principle, the government would not only have the right, but would be bound , to look into every man’s private affairs and every person’s personal expenditures, and determine as to which of them did, and which of them did not, tend to poverty; and to prohibit and punish all of the former class. A man would have no right to expend a cent of his own property, according to his own pleasure or judgment, unless the legislature should be of the opinion that such expenditure would not tend to poverty.

  • 3. A third answer to the same argument is, that if a man does bring himself to poverty, and even to beggary --- either by his virtues or his

vices --- the government is under no obligation whatever to take care of him, unless it pleases to do so. It may let him perish in the street, or depend upon private charity, if it so pleases. It can carry out its own free will and discretion in the matter; for it is above all legal responsibility in such a case. It is not, necessarily, any part of a government’s duty to provide for the poor. A government --- that is, a legitimate government --- is simply a voluntary association of individuals, who unite for such purposes, and only for such purposes, as suits them. If taking care of the poor --- whether they be virtuous or vicious --- be not one of those purposes, then the government, as a government, has no more right, and is no more bound, to take care of them, than has or is a banking company, or a railroad company.

Whatever moral claims a poor man --- whether he be virtuous or vicious --- may have upon the charity of his fellow-men, he has no legal claims upon them. He must depend wholly upon their charity, if they so please. He cannot demand, as a legal right, that they either feed or clothe him. And he has no more legal or moral claims upon a government --- which is but an association of individuals --- than he has upon the same, or any other individuals, in their private capacity.

Inasmuch, then, as a poor man --- whether virtuous or vicious --- has no more or other claims, legal or moral, upon a government, for food or clothing, than he has upon private persons, a government has no more right than a private person to control or prohibit the expenditures or actions of an individual, on the ground that they tend to bring him to poverty.

Mr. A, as an individual , has clearly no right to prohibit any acts or expenditures of Mr. Z, through fear that such acts or expenditures may tend to bring him (Z) to poverty, and that he (Z) may, in consequence, at some future unknown time, come to him (A) in distress, and ask charity. And if A has no such right, as an individual, to prohibit any acts or expenditures on the part of Z, then government, which is a mere association of individuals, can have no such right.

Certainly no man, who is compos mentis, holds his right to the disposal and use of his own property, by any such worthless tenure as that which would authorize any or all of his neighbors --- whether calling themselves a government or not—to interfere, and forbid him to make any expenditures, except such as they might think would not tend to poverty, and would not tend to ever bring him to them as a supplicant for their charity.

Whether a man, who is compos mentis, come to poverty, through his virtues or his vices, no man, nor body of men, can have any right to interfere with him, on the ground that their sympathy may some time be appealed to in his behalf; because, if it should be appealed to, they are at perfect liberty to act their own pleasure or discretion as to complying with his solicitations.

This right

to refuse charity to

the poor

---

whether the latter be virtuous or vicious

---

is one that governments always act upon. No

government makes any more provision for the poor than it pleases. As a consequence, the poor are left, to a great extent, to depend upon private charity. In fact, they are often left to suffer sickness, and even death, because neither public nor private charity comes to their aid. How absurd, then, to say that government has a right to control a man’s use of his own property, through fear that he may sometime come to poverty, and ask charity.

  • 4. Still a fourth answer to the argument is, that the great and only incentive which each individual man has to labor, and to create wealth, is that

he may dispose of it according to his own pleasure or discretion, and for the promotion of his own happiness, and the happiness of those whom he

Although a man may often, from inexperience or want of judgment, expend some portion of the products of his labor injudiciously, and so as not to promote his highest welfare, yet he learns wisdom in this, as in all other matters, by experience; by his mistakes as well as by his successes. And this is the only way in which he can learn wisdom. When he becomes convinced that he has made one foolish expenditure, he learns thereby not to make another like it. And he must be permitted to try his own experiments, and to try them to his own satisfaction, in this as in all other matters; for otherwise he has no motive to labor, or to create wealth at all.

Any man, who is a man, would rather be a savage, and be free, creating or procuring only such little wealth as he could control and consume from day to day, than to be a civilized man, knowing how to create and accumulate wealth indefinitely, and yet not permitted to use or dispose of it, except under the supervision, direction, and dictation of a set of meddlesome, superserviceable fools and tyrants, who, with no more knowledge than himself, and perhaps with not half so much, should assume to control him, on the ground that he had not the right, or the capacity, to determine for himself as to what he would do with the proceeds of his own labor.

  • 5. A fifth answer to the argument is, that if it be the duty of government to watch over the expenditures of any one person --- who is compos

mentis , and not criminal --- to see what ones tend to poverty, and what do not, and to prohibit and punish the former, then, by the same rule, it is

bound to watch over the expenditures of all other persons, and prohibit and punish all that, in its judgment, tend to poverty.

If such a principle were carried out impartially, the result would be, that all mankind would be so occupied in watching each other’s expenditures, and in testifying against, trying, and punishing such as tended to poverty, that they would have no time left to create wealth at all. Everybody capable of productive labor would either be in prison, or be acting as judge, juror, witness, or jailer. It would be impossible to create courts enough to try, or to build prisons enough to hold, the offenders. All productive labor would cease; and the fools that were so intent on preventing poverty, would not only all come to poverty, imprisonment, and starvation themselves, but would bring everybody else to poverty, imprisonment, and starvation.

  • 6. If it be said that a man may, at least, be rightfully compelled to support his family, and, consequently, to abstain from all expenditures that, in

the opinion of the government, tend to disable him to perform that duty, various answers might be given. But this one is sufficient, viz.: that no man, unless a fool or a slave, would acknowledge any family to be his, if that acknowledgment were to be made an excuse, by the government, for depriving him, either of his personal liberty, or the control of his property.

When a man is allowed his natural liberty, and the control of his property, his family is usually, almost universally, the great paramount object of his pride and affection; and he will, not only voluntarily, but as his highest pleasure, employ his best powers of mind and body, not merely to provide for them the ordinary necessaries and comforts of life, but to lavish upon them all the luxuries and elegancies that his labor can procure.

A man enters into no moral or legal obligation with his wife or children to do anything for them, except what he can do consistently with his own personal freedom, and his natural right to control his own property at his own discretion.

If a government can step in and say to a man --- who is compos mentis , and who is doing his duty to his family, as he sees his duty, and according to his best judgment, however imperfect that may be --- " We (the government) suspect that you are not employing your labor to the best advantage for your family; we suspect that your expenditures, and your disposal of your property, are not so judicious as they might be, for the interest of your family; and therefore we (the government) will take you and your property under our special surveillance, and prescribe to you what you may, and may not do, with yourself and your property; and your family shall hereafter look to us (the government), and not to you, for support"—if a government can do this, all a man’s pride, ambition, and affection, relative to this family, would be crushed, so far as it would be possible for human tyranny to crush them; and he would either never have a family (whom he would publicly acknowledge to be his), or he would risk both his property and his life in overthrowing such an insulting, outrageous, and insufferable tyranny. And any woman who would wish her husband --- he being compos mentis - -- to submit to such an unnatural insult and wrong, is utterly undeserving of his affection, or of anything but his disgust and contempt. And he would probably very soon cause her to understand that, if she chose to rely on the government, for the support of herself and her children, rather than on him, she must rely on the government alone.

XXII.

Still another and all-sufficient answer to the argument that the use of spirituous liquors tends to poverty, is that, as a general rule, it puts the effect before the cause. It assumes that it is the use of the liquors that causes the poverty, instead of its being the poverty that causes the use of the liquors.

Poverty is the natural parent of nearly all the ignorance, vice, crime, and misery there are in the world. 6Why is it that so large a portion of the laboring people of England are drunken and vicious? Certainly not because they are by nature any worse than other men. But it is because, their extreme and hopeless poverty keeps them in ignorance and servitude, destroys their courage and self-respect, subjects them to such constant insults and wrongs, to such incessant and bitter miseries of every kind, and finally drives them to such despair, that the short respite that drink or other vice affords them, is, for the time being, a relief. This is the chief cause of the drunkenness and other vices that prevail among the laboring people of England.

If those laborers of England, who are now drunken and vicious, had had the same chances and surroundings in life as the more fortunate classes have had; if they had been reared in comfortable, and happy, and virtuous homes, instead of squalid, and wretched, and vicious ones; if they had had opportunities to acquire knowledge and property, and make themselves intelligent, comfortable, happy, independent, and respected, and to secure to themselves all the intellectual, social, and domestic enjoyments which honest and justly rewarded industry could enable them to secure --- if they could have had all this, instead of being born to a life of hopeless, unrewarded toil, with a certainty of death in the workhouse, they would have been as free from their present vices and weaknesses as those who reproach them now are.

It is of no use to say that drunkeness, or any other vice, only adds to their miseries; for such is human nature --- the weakness of human nature, if you please --- that men can endure but a certain amount of misery, before their hope and courage fail, and they yield to almost anything that promises present relief or mitigation; though at the cost of still greater misery in the future. To preach morality or temperance to such wretched persons, instead of relieving their sufferings, or improving their conditions, is only insulting their wretchedness.

Will those who are in the habit of attributing men’s poverty to their vices, instead of their vices to their poverty --- as if every poor person, or most poor persons, were specially vicious --- tell us whether all the poverty within the last year and a half 7 have been brought so suddenly --- as it were in a moment --- upon at least twenty millions of the people of the United States, were brought upon them as a natural consequence, either of their drunkenness, or of any other of their vices? Was it their drunkenness, or any other of their vices, that paralyzed, as by a stroke of lightning, all the industries by which they lived, and which had, but a few days before, been in such prosperous activity? Was it their vices that turned the adult portion of those twenty millions out of doors without employment, compelled them to consume their little accumulations, if they had any, and then to become beggars --- beggars for work, and, failing in this, beggars for bread? Was it their vices that, all at once, and without warning, filled the homes of so many of them with want, misery, sickness, and death? No. Clearly it was neither the drunkenness, nor any other vices, of these laboring people, that brought upon them all this ruin and wretchedness. And if it was not, what was it?

This is the problem that must be answered; for it is one that is repeatedly occurring, and constantly before us, and that cannot be put aside.

In fact, the poverty of the great body of mankind, the world over, is the great problem of the world. That such extreme and nearly universal poverty exists all over the world, and has existed through all past generations, proves that it originates in causes which the common human nature of those who suffer from it, has not hitherto been strong enough to overcome. But these sufferers are, at least, beginning to see these causes, and are becoming resolute to remove them, let it cost what it may. And those who imagine that they have nothing to do but to go on attributing the poverty of the poor to their vices, and preaching to them against their vices, will ere long wake up to find that the day for all such talk is past. And the question will then be, not what are men’s vices, but what are their rights?

NOTES

1. To give an insane man a knife, or other weapon, or thing, by which he is likely to injure himself, is a crime.

  • 2. The statute book of Massachusetts makes ten years the age at which a female child is supposed to have discretion enough to part with virtue. But the same statute book holds that no person, man or woman, of any age, or any degree of wisdom or experience, has discretion to be trusted to buy and drink a glass of spirits, on his or her own Judgement! What an illustration of the legislative wisdom of Massachusetts!

  • 3. Cato committed suicide to avoid falling into the hands of Caesar. Who ever suspected that he was insane? Brutus did the same. Colt

committed suicide only an hour or so before he was to be hanged. He did it to avoid bringing upon his name and his family the disgrace

of having it said that he was hanged. This, whether a wise act or not, was clearly an act suppose that the person who furnished him with the necessary instrument was a criminal?

within reasonable discretion. Does any one

  • 4. An illustration of this fact is found in England, whose government, for a thousand years and more, has been little or nothing else than a band of robbers, who have conspired to monopolize the land, and, as far as possible, all other wealth. These conspirators, calling themselves kings, nobles, and freeholders, have, by force and fraud, taken to themselves all civil and Military power; they keep themselves in power solely by force and fraud, and the corrupt use of their wealth; and they employ their power solely in robbing and enslaving the great body of their own people, and in plundering and enslaving other peoples. And the world has been, and now is, full of examples substantially similar. And the governments of our own country do not differ so widely from others, in this respect, as some of us imagine.

  • 5. It is to this incentive alone that we are indebted for all the wealth that has ever been created by human labor, and accumulated for the benefit of mankind.

  • 6. Except those great crimes, which the few, calling themselves governments, practise upon the many, by means of organized, systematic extortion and tyranny. And it is only the poverty, ignorance, and consequent weakness of the many, that enable the combined and organized few to acquire and maintain such arbitrary power over them.

  • 7. That is, from September 1, 1873, to March 1, 1875.

ON THE DUTY OF CIVIL DI SOBEDIENCE

BY

HENRY DAVID THOREAU

COPYRIGHT INFORMATION

Essay: “On the Dut y of Civil Disobedience” Author: Henr y David Thoreau, 1817–62 First published: 1849

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I HE ART ILY accept the motto,—“That government is best which governs least;” and I should like to see it acted up to more rapidl y and s ystematicall y. Carried out, it finall y amounts to this, which also I believe,—“That government is best whi ch governs not at all;” and when men are prepared for it, that will be the kind of government whi ch the y will have. Government is at best but an expedient; but most governments are usuall y, and all governments are sometimes, inexpedient. The objections which have been brought against a standi ng army, and the y are many and wei ght y, and deserve to prevail, may also at last be brought against a standing government. The standing arm y is onl y an arm of the standing government. The government itself, which is onl y the mode which the people have chosen to execute their will, is equall y liable to be abus ed and perverted before t he people can act through it. Witness the present Mexican war, the work of comparativel y a few indi viduals using the standing government as their tool; for, in the outset, the people would not have consented to this measure. This American government,—what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterit y, but each instant losing some of its int egrit y? It has not the vitalit y and force of a singl e living man; for a singl e man can bend it to his will. It is a sort of wooden gun to the people themselves; and, if ever they should use it in earnest as a real one against each other, it will surel y split. But it is not the less necessar y for this; for t he people must have s ome complicated machiner y or other, and hear its din, to satisfy that idea of

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government which they have. Governments show thus how successfull y men can be imposed on, even impose on themselves, for their own advantage. It is excellent, we must all allow; yet this government never of itself furthered any ent erprise, but by the alacrit y with whi ch it got out of its wa y. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and i t would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if the y were not made of India rubber, would never manage to bounce over the obstacles which legislators are continually putting in their wa y; and, if one were to judge thes e men wholl y by the effects of their actions, and not partl y b y their intentions, they would des erve to be classed and punished with those mischievous persons who put obstructions on the railroads. But, to speak practicall y and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let ever y man make known what kind of government would command his respect, and that will be one step toward obtaining it. After all, the practical reason why, when the power is once in the hands of the people, a majorit y are permitted, and for a long period continue, to rule, is not because the y are most likel y to be in the right, nor because this seems fairest to the minorit y, but because the y are ph ysicall y the strongest. But a government in which the majorit y rule in all cas es cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtuall y decide ri ght and wrong, but conscience? —in which majorities decide onl y t hose questions to which the rule of expedienc y is applicabl e? Must the citizen ever

HENRY DAVID THOREAU 5

for a moment, or in the least degree, resi gn his conscience to the legislator? Why has every man a cons cience, then? I think that we should be men first, and subjects afterward. It is not desirabl e to cultivate a respect for the law, so much as for the right. The onl y obligation which I have a right to assume, is to do at an y time what I think ri ght. It is trul y enough said, that a corporation has no conscience; but a corporation of consci entious men is a corporation with a conscience. Law never made men a whit more just; and, b y means of their respect for it, even the well-disposed are dail y made the agents of injustice. A common and natural result of an undue respect for law is, that you ma y see a file of soldiers, colonel, captain, corporal, privat es, powder-monke ys and all, marching in admirable order over hill and dale to the wars, against their wills, aye, against their common sense and consciences, which makes it ver y steep marching indeed, and produces a palpitation of the heart. The y have no doubt that it is a damnable business in which they are concerned; the y are all peaceabl y inclined. Now, what are they? Men at all? or small moveable forts and magazines, at the service of some unscrupulous man in power? Visit the Navy Yard, and behold a marine, such a man as an American government can make, or such as it can make a man with its black arts,—a mere shadow and reminiscence of humanit y, a man laid out alive and standing, and alread y, as one may s a y, buried under arms with funeral accompaniments, though it ma y be

“Not a drum was heard, not a funeral note, As his corse to the ramparts we hurried; Not a soldier discharged his farewell shot O’er the grave where our hero we buried. ”

The mass of men serve t he State thus, not as men mainl y, but as machines, with their bodies. They are the standing arm y, and the militia, jailers, constables, posse comitatus, &c. In most cases there

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is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured t hat will serve the purpose as well. Such command no more respect than men of straw, or a lump of dirt. They have the same sort of worth onl y as horses and dogs. Yet such as these even are commonl y esteemed good citizens. Others, as most legislators, politicians, lawyers, ministers, and office-holders, serve the State chiefl y with their heads; and, as the y rarel y make an y moral distinctions, they are as likel y to serve the devil, without intending it, as God. A very few, as heroes, patriots, mart yrs, reformers in the great sense, and men, serve the State with their consciences also, and so necessaril y resist it for the most part; and they are commonl y treated b y it as enemies. A wise man will onl y be useful as a man, and will not submit to be “cla y, ” and “stop a hole to keep the wind awa y,” but leave that office to his dust at least:—

“I am too high-born to be propertied, To be a secondar y at control, Or useful serving-man and instrument To any soverei gn stat e throughout the world.”

He who gives himself entirel y to his fellow-men appears to them useless and selfish; but he who gives himself partiall y to them is pronounced a benefactor and philanthropist. How does it become a man to behave toward this American government to-da y? I answer that he cannot wi thout disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.

All men recognize the right of revolution; that is, the right to refuse allegi ance to and t o resist the government, when its t yrann y or its inefficienc y are great and unendurabl e. But almost all sa y

HENRY DAVID THOREAU 7

that such is not the case now. But such was the case, the y think, in the Revolution of ’75. If one were to tell me that this was a bad government because it t axed certain forei gn commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them: all machines have their friction; and possibl y this does enough good to counterbalance the evil. At an y rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robber y are organized, I s a y, let us not have such a machine an y longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of libert y are slaves, and a whole country is unjustl y overrun and conquered b y a foreign arm y, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this dut y the more urgent is the fact, that the countr y so overrun is not our own, but ours is the invading arm y. Paley, a common authorit y with many on moral questions, in his chapter on the “Dut y of Submission to Civil Government,” resolves all civil obligation into expediency; and he proceeds to say, “that so long as the interest of the whol e societ y requires it, that is, so long as the established government cannot be resisted or changed without public inconvenienc y, it is the will of God, that the established government be obe yed, and no longer. ”—“This principle being admitted, the justice of ever y particular case of resistance is reduced to a computation of the quantit y of the danger and gri evance on the one side, and of the probabilit y and expense of redressing it on the other.” Of this, he sa ys, ever y man shall judge for himself. But P ale y appears never to have contemplat ed those cases to which the rule of expedienc y does not appl y, in which a people, as well as an individual, must do justice, cost what it may. If I have unjustl y wrested a plank from a drowning man, I must restore it to him though I drown mys elf. This, according to Paley, would be inconvenient. But he that would save his life, in

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such a case, shall lose it. This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people. In their practice, nations agree with Paley; but does an y one think that Massachusetts does exactl y what is ri ght at the pres ent crisis?

“A drab of state, a cloth-o’-silver slut, To have her train borne up, and her soul trail in the dirt.”

Practicall y speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than the y are in humanit y, and are not prepared to do justice to the slave and to Mexico, cost what it may. I quarrel not with far-off foes, but with those who, near at home, co-operate with, and do the bidding of those far awa y, and without whom the latter would be harmless. We are accust omed to sa y, that the mass of men are unprepared; but improvement is slow, becaus e the few are not materiall y wiser or better than the many. It is not so important that man y should be as good as you, as that there be some absolute goodness somewhere; for that will leaven the whole lump. There are thousands who are in opinion opposed to slavery and to the war, who yet i n effect do nothing to put an end to them; who, esteeming thems elves children of Washington and Franklin, sit down with their hands in their pockets, and s ay that the y know not what to do, and do nothing; who even postpone the question of freedom to the question of free-trade, and quietl y read the pri ces- current along with the l atest advices from Mexico, after dinner, and, it ma y be, fall asl eep over them both. What is the price- current of an honest man and patriot to-da y? They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. They will wait, well disposed, for others to

HENRY DAVID THOREAU 9

remed y the evil, that they ma y no longer have it t o regret. At most, they give onl y a cheap vote, and a feeble countenance and Godspeed, to the ri ght, as it goes b y them. There are nine hundred and ninet y-nine patrons of virtue to one virtuous man; but it is easier to deal with the real possessor of a thing than with the temporar y guardian of it. All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturall y accompanies it. The character of the voters is not staked. I cast my vot e, perchance, as I think right; but I am not vitall y concerned that that ri ght should prevail. I am willing to leave it to the majorit y. Its obligation, therefore, never exceeds that of expedienc y. Even voting for the right is doing nothing for it. It is onl y expressing to men feebl y your desire that it should prevail. A wise man will not leave the right to the merc y of chance, nor wish it to prevail through the power of the majorit y. There is but little virtue in the action of masses of men. When the majorit y shall at length vote for the abolition of slaver y, it will be becaus e the y are indifferent to slaver y, or because there is but little slavery left to be abolished by their vote. They will then be the onl y slaves. Onl y his vote can hasten the abolition of slaver y who ass erts his own freedom b y his vote.

I hear of a convention to be held at Baltimore, or elsewhere, for the sel ection of a candidate for the Presidenc y, made up chiefl y of editors, and men who are politicians b y profession; but I think, what is it to any independent, intelligent, and respectable man what decision the y ma y come to, shall we not have the advantage of his wisdom and honest y, nevertheless? Can we not count upon some independent votes? Are there not man y individuals in the countr y who do not attend conventions? But no: I find that the respect able man, so called, has immediatel y drift ed from his position, and despairs of his country, when his country has more reason to

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despair of him. He fort hwith adopts one of the candidates thus selected as the onl y avai lable one, thus proving t hat he is himself available for an y purposes of the demagogue. His vote is of no more worth than that of an y unprincipled foreigner or hireling native, who ma y have been bought. Oh for a man who is a man, and, as my nei ghbor sa ys, has a bone in his back which you cannot pass your hand through! Our statistics are at fault: the population has been returned too large. How many men are t here to a square thousand miles in this country? Hardl y one. Does not Ameri ca offer an y inducement for men to settle here? The American has dwindled into an Odd Fellow,—one who may be known by the development of his organ of gregariousness, and a manifest lack of intellect and cheerful self-reliance; whos e first and chief concern, on coming into the world, is to see that the alms-houses are in good repair; and, before yet he has lawfull y donned t he virile garb, to collect a fund for the support of the widows and orphans that may be; who, in short, ventures to live onl y b y the aid of the mutual insurance compan y, which has promised to bur y him decentl y. It is not a man’s dut y, as a matter of course, to devote himself to the eradi cation of an y, even the most enormous wrong; he ma y still properl y have other concerns to engage him; but it is his dut y, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practicall y his support. If I devote mys elf to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man’s shoulders. I must get off him first, that he ma y pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of m y townsmen sa y, “I should like to have them order me out to help put down an insurrection of t he slaves, or to march to Mexico,—see if I would go;” and yet these ver y men have each, directl y b y their allegi ance, and so indirectl y, at least, by their money, furnished a substitute. The soldier is applauded who refuses to serve in an unjust war b y those who do not refuse to sustain the unjust

HENRY DAVID THOREAU

11

government which makes the war; is applauded by those whos e own act and authorit y he disregards and sets at naught; as if the State were penitent to that degree that it hired one to scourge it while it sinned, but not to that degree that it left off sinning for a moment. Thus, under the name of order and civi l government, we are all made at last to pay homage to and s upport our own meanness. After the first blush of sin, comes its indifference; and from immoral it becomes, as it were, unmoral , and not quite unnecessar y to that life which we have made. The broadest and most prevalent error requires the most disinterested virtue to sustain it. The slight reproach to whi ch the virtue of patriotism is commonl y liable, the nobl e are most likel y to incur. Those who, while they disapprove of the character and measures of a government, yi eld to it their allegi ance and support, are undoubtedl y its most conscientious supporters, and so frequentl y the most serious obstacles to reform. Some are petitioning the State to dissolve the Union, t o disregard the requisitions of the President. Why do they not dissolve it themselves,—the union between themselves and the State,—and refuse to pa y their quota into its treasury? Do not they stand in the same relation to the State, that the State does to the Union? And have not the same reasons prevent ed the State from resisting the Union, which have prevented them from resisting the State? How can a man be s atisfied to entertain an opinion merel y, and enjo y it? Is there any enjoyment in it, if his opinion is that he is aggri eved? If you are cheated out of a single dollar by your neighbor, you do not rest satisfied with knowing that you are cheated, or with saying that you are cheat ed, or even with petitioning him to pa y yo u your due; but you take effectual steps at once to obtain the full amount, and see that you are n ever cheated again. Action from principle,—the perception and the performance of ri ght,—changes thi ngs and relations; it is essentiall y revolutionar y, and does not consist wholl y with any thing which

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was. It not onl y divides states and churches, it divides families; aye, it divides the individual, separating the diabol ical in him from the divine. Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obe y them until we have succeeded, or shall we transgress them at once? Men generall y, under such a government as this, think that they ought to wait until they have persuaded the majorit y to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it wors e. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minorit y? Why does it cr y and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does i t alwa ys crucif y Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels? One would think, that a deliberate and practical denial of its authorit y, was the onl y offens e never contemplated by government; else, wh y has it not assigned its definite, its suitable and proportionate penalt y? If a man who has no propert y refus es but once to earn nine shillings for the State, he is put in prison for a period unlimited by an y law that I know, and det ermined onl y b y the discretion of those who placed him there; but if he should steal ninet y times nine shillings from the State, he is soon permitted to go at large again. If the injustice is part of the necessar y friction of the machine of government, let it go, let it go; perchance it will wear smooth,— certainl y the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusivel y for its elf, then perhaps you ma y consider whether the remed y will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I sa y, break the law. Let your life be a

HENRY DAVID THOREAU 13

counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn. As for adopting the ways whi ch the State has provided for remed ying the evil, I know not of such wa ys. They t ake too much time, and a man’s life will be gone. I have other affairs to attend to. I came into this world, not chiefl y to make this a good pl ace to live in, but to live in it, be it good or bad. A man has not ever y thing to do, but something; and because he cannot do every thing, it is not necessar y that he should do something wrong. It is not my business to be petitioning the governor or the legislature any more than it is theirs to petition me; and, if they should not hear my petition, what should I do then? But in this case the State has provided no wa y:

its very Constitution is the evil. This ma y seem to be harsh and stubborn and unconciliatory; but it is to treat with the utmost kindness and consideration the onl y spirit that can appreciate or deserve it. So is all change for the better, like birth and death which convulse the bod y. I do not hesitate to say, that those who call themselves abolitionists should at once effectuall y withdraw their support, both in person and propert y, from the government of Massachusetts, and not wait till the y constitute a majorit y of one, before the y suffer the ri ght to prevail through them. I think that it is enough if the y have God on their side, without waiting for that other one. Moreover, any man more ri ght than his neighbors, constitutes a majorit y of one alread y. I meet this American government, or its repres entative the State government, directly, and face to face, once a year, no more, in the person of its tax -gatherer; this is the onl y mode in which a man situated as I am necess aril y meets it; and it then sa ys distinctl y, Recognize me; and the simplest, the most effectual, and, in the present posture of affairs, the indispensablest mode of treating with it on this head, of expressing your little satisfaction with and love for it, is to deny it then. My civil neighbor, the tax-

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gatherer, is the ver y man I have to deal with,—for it is, after all, with men and not with parchment that I quarrel,—and he has voluntaril y chosen to be an agent of the government. How shall he ever know well what he is and does as an officer of the government, or as a man, until he is obliged to consider whether he shall treat me, his nei ghbor, for whom he has respect, as a neighbor and well-disposed man, or as a mani ac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action? I know this well, that if one thousand, if one hundred, if ten men whom I could name,—if ten honest men onl y,—a ye, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actuall y to withdraw from this copartnership, and be locked up in the count y j ail therefor, it would be the abolition of slaver y in America. For it matters not how small the beginning ma y s eem to be: what is once well done is done for ever. But we love better to talk about it: that we say is our mission. Reform keeps man y s cores of newspapers in its service, but not one man. If m y esteemed neighbor, the State’s ambassador, who will devote his da ys to the s ettlement of the question of human ri ghts in the Council Chamber, instead of being threatened with the prisons of Carolina, were to sit down the prisoner of Mass achuset ts, that State which is so anxious to foist the sin of slaver y upon her sister,—though at present she can discover onl y an act of i nhospitalit y to be the ground of a quarrel with her,—the Legislature would not wholl y waive the subject the following winter. Under a government which imprisons any unjustl y, the true place for a just man is also a prison. The p roper place to-da y, the onl y place which Mass achusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act , as the y have alread y put themselves out by their principles. It is there that the fugitive slave, and the

HENRY DAVID THOREAU 15

Mexican prisoner on parole, and the Indian come to plead the wrongs of his race, should find them; on that s eparat e, but more free and honorable ground, where the State places those who are not with her but against her,—the onl y hous e i n a slave-state in which a free man can abide with honor. If any think that their influence would be lost there, and their voices no longer afflict the ear of the State, that they would not be as an enem y within its walls, they do not know by how much truth is stronger than error, nor how much more eloquentl y and effectivel y he can combat injustice who has experienced a little in his own person. Cast your whole vote, not a strip of paper merel y, but your whole influence. A minorit y is powerl ess while it conforms to the majorit y; it is not even a minorit y then; but it is irresistible when it clogs b y its whol e weight. If the alternative is to keep all just men in prison, or give up war and slaver y, the State will not hesitate which to choose. If a thousand men were not to pay their tax -bills this year, that would not be a violent and bloody measure, as it woul d be to pa y them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revol ution, if any such is possible. If the tax -gatherer, or an y other public officer, asks me, as one has done, “But what shall I do? ” my answer is, “ If you reall y wish to do an y thing, resi gn your office.” When the subject has refus ed allegiance, and the officer has resigned his office, then the revolution is accomplished. But even suppose blood should flow. Is there not a sort of blood shed when the conscience is wounded? Through this wound a man’s real manhood and immortalit y flow out, and he bleeds to an everlasting death. I see this blood flowing now. I have contemplat ed the imprisonment of the offender, rather than the seizure of his goods,—though both will serve the same purpose,—because the y who assert the purest ri ght, and consequentl y are most dangerous to a corrupt State, commonl y have not spent much time in accumulating propert y. To such the

16

CIV IL DISOBEDIENCE

State renders comparativel y small service, and a slight tax is wont to appear exorbitant, particularl y if the y are obliged to earn it by special labor with their hands. If there were one who lived wholl y without the use of mone y, the State itself would hesitate to demand it of him. But the rich man—not to make any invidious comparison—is alwa ys sold to the institution which makes him rich. Absolutel y speaking, the more mone y, the less virtue; for money comes between a man and his objects, and obtains them for him; it was certainl y no great virtue to obtain i t. It puts to rest many questions which he would otherwise be taxed to answer; while the onl y new question which it puts is the hard but superfluous one, how to spend it. Thus his moral ground is taken from under his feet. The opportunities of living are diminished in proportion as what are called the “means” are increas ed. The best thing a man can do for his culture when he is rich is to endeavor to carr y out those schemes which he entert ained when he was poor. Christ answered the Herodians according to their condition. “Show me the tribute-mone y, ” s aid he;—and one took a penny out of his pocket;—If you use money which has the image of Caesar on it, and which he has made current and valuable, that is, if you are men of the State, and gladl y enjo y the advant ages of Caesar’s government, then pa y him back some of his own when he demands it; “Render therefore to Caesar that which is Caesar’s, and to God those things which are God’s,”—leaving them no wiser than before as to which was which; for they did not wish to know. When I converse with the freest of my nei ghbors, I perceive that, whatever the y ma y say about the magnitude and seriousness of the question, and their regard for the public tranquillit y, the long and the short of the matter is, that the y cannot spare the protection of the existing government, and the y dread the consequences of disobedience to it to their propert y and families. For my own part, I should not like to think that I ever rel y on the protection of the State. But, if I den y the authorit y of the State when it pres ents its

HENRY DAVID THOREAU 17

tax-bill, it will soon take and waste all my propert y, and so harass me and my children without end. This is hard. This makes it impossible for a man to live honestl y and at the same time comfortabl y in outward respects. It will not be worth the while to accumulate propert y; that would be sure to go agai n. You must hire or squat somewhere, and raise but a small crop, and eat that soon. You must live within yourself, and depend upon yourself, alwa ys tucked up and read y for a start, and not have many affairs. A man may grow ri ch in Turkey even, if he will be in all respects a good subject of the Turkish government. Confucius said,—“If a State is governed b y the princi ples of reason, povert y and miser y are subjects of shame; if a State is not governed b y the principles of reason, riches and honors are the subjects of shame.” No: until I want the protection of Massachusetts to be extended to me in some distant southern port, where m y libert y is endangered, or until I am bent solel y on building up an estate at home by peaceful enterprise, I can afford to refuse all egi ance to Massachus etts, and her right to my propert y and life. It costs me less in every s ense to incur the penalt y of disobedience t o the State, than it would to obey. I should feel as if I were worth less in that case. Some years ago, the Stat e met me in behalf of the church, and commanded me to pay a certain sum toward the support of a clergyman whos e preaching m y father attended, but never I myself. “Pa y, ” it said, “or be locked up in the jail.” I declined to pay. But, unfortunatel y another man saw fit to pay it. I did not see why the schoolmaster should be taxed to support the priest, and not the priest the schoolmaster: for I was not the State’s schoolmaster, but I support ed mys elf by voluntar y subs cription. I did not see wh y the l yceum should not present its tax -bill, and have the State to back its demand, as well as the church. However, at the request of the selectmen, I condescended to make some such statement as this in writing:—“Know all men by thes e pres ents, that I, Henr y Thoreau, do not wish to be regarded as a member of an y

18

CIV IL DISOBEDIENCE

incorporated societ y whi ch I have not joined.” This I gave to the town-clerk; and he has it. The State, having thus l earned that I did not wish to be regarded as a member of that church, has never made a like demand on me since; though it s aid t hat it must adhere to its original presumption that time. If I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find a complete list. I have paid no poll-tax for six years. I was put into a jail once on this account, for one night; and, as I stood considering the walls of solid stone, two or three feet thick, the door of wood and iron, a foot thick, and the iron grating which strained the light, I could not help being struck with the foolishness of that institution which treated me as if I were mere flesh and blood and bones, to be locked up. I wondered that it should have concluded at length that this was the best use it could put me to, and had never thought to avail itself of m y services in some wa y. I saw that, if there was a wall of stone between me and m y townsmen, there was a still more difficult one to climb or break through, before they could get to be as free as I was. I did not for a moment feel confined, and the walls seemed a great waste of stone and mortar. I felt as if I alone of all my townsmen had paid my tax. They plainl y did not know how to treat me, but behaved li ke persons who are underbred. In ever y threat and in ever y compliment there was a blunder; for the y thought that my chief desire was to stand the other side of that stone wall. I could not but smile to see how industriousl y the y locked the door on m y meditations, which followed them out again without let or hindrance, and they were reall y all that was dangerous. As the y could not reach me, the y had resolved to punish my bod y; just as boys, if the y cannot come at some person against whom they have a spite, will abuse his dog. I saw that the State was half-witted, that it was timid as a lone woman with her

HENRY DAVID THOREAU 19

silver spoons, and that it did not know its friends from its foes, and I lost all m y remaining respect for it, and pitied it. Thus the State never intentionall y confronts a man’s sense, intellectual or moral, but onl y his bod y, his sens es. It is not armed with superior wit or honest y, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest. What force has a multitude? They onl y can force me who obe y a higher law than I. They force me to become like themselves. I do not hear of men being forced to live this way or that by mass es of men. What sort of life were that to live? When I meet a government which s a ys to me, “Your mone y or your life,” wh y should I be in haste to give it my mone y? It ma y be in a great strait, and not know what to do: I cannot help that. It must help itself: do as I do. It is not worth the whil e to snivel about it. I am not responsi ble for the successful working of the machiner y of societ y. I am not the son of the engineer. I perceive that, when an acorn and a chestnut fall side by si de, the one does not remain inert to make wa y for the other, but bot h obey their own laws, and spring and grow and flourish as best they can, till one, perchance, overshadows and destroys the other. If a plant cannot live according to its nature, it dies; and so a man.

The night in prison was novel and interesting enough. The prisoners in their shirt-sleeves were enjo ying a chat and the evening air in the doorwa y, when I entered. But the jailer said, “Come, bo ys, it is time to lock up,” and so the y dispersed, and I heard the sound of their steps returning into the hollow apartments. My roommate was introduced to me by the jailer, as “a first-rate fellow and a clev er man. ” When the door was locked, he showed me where to hang m y hat, and how he managed matters there. The rooms were whitewashed once a month; and this one, at least, was the whitest, most simpl y furnished, and probabl y the neatest apartment in the town. He naturall y wanted to know where I came from, and what brought me there; and, when I had told him, I

20

CIV IL DISOBEDIENCE

asked him in my turn how he came there, presuming him to be an honest man, of cours e; and, as the world goes, I believe he was. “Why,” said he, “the y accuse me of burning a barn; but I never did it.” As near as I could discover, he had probabl y gone to bed in a barn when drunk, and smoked his pipe there; and so a barn was burnt. He had the reputat ion of being a clever man, had been there some three months waiting for his trial to come on, and would have to wait as much longer; but he was quite domesticated and contented, since he got his board for nothing, and thought that he was well treated. He occupied one window, and I the other; and I saw, that, if one stayed there long, his principal business would be to look out the window. I had soon read all the tracts that were l eft there, and examined where former prisoners had broken out, and where a grate had been sawed off, and heard the history of the various occupants of that room; for I found that even here there was a history and a gossip which never circulated be yond the walls of the jail. Probabl y this is the onl y house in the town where verses are composed, which are afterward printed in circular form, but not published. I was shown quite a long list of verses which were composed b y some young men who had been detected in an attempt to escape, who avenged themselves b y si nging them. I pumped m y fellow-prisoner as dr y as I coul d, for fear I should never see him again; but at length he showed me which was my bed, and left me to bl ow out the lamp. It was like travelling int o a far countr y, such as I had never expected to behold, to lie there for one ni ght. It s eemed to me that I never had heard the town-clock strike before, nor the evening sounds of the village; for we slept with the windows open, which were inside the grating. It was to see my native village in the light of the middle ages, and our Concord was turned into a Rhine stream, and visions of knights and castles passed before me. The y were the voi ces of old burghers that I heard in the streets. I was an

HENRY DAVID THOREAU

21

involuntary spectator and auditor of whatever was done and said in the kitchen of the adj acent village-inn,—a wholl y new and rare experience to me. It was a closer view of m y native town. I was fairl y inside of it. I never had seen its institutions before. This is one of its peculiar institutions; for it is a shire town. I began to comprehend what its inhabitants were about. In the morning, our breakfasts were put through the hole in the door, in small oblong-square tin pans, made to fit, and holding a pint of chocolate, with brown bread, and an iron spoon. When they called for the vessels again, I was green enough to return what bread I had left, but my comrade s eized it, and said that I should lay that up for lunch or dinner. Soon aft er, he was let out to work at haying in a nei ghboring field, whither he went ever y da y, and would not be back till noon; so he bade me good-da y, sa ying that he doubted if he should s ee me again. When I came out of prison,—for some one interfered, and paid that tax,—I did not perceive that great changes had taken place on the common, such as he observed who went in a youth, and emerged a tottering and gra y-headed man; and yet a change had to my e yes come over the scene,—the town, and State and country,—greater than any that mere time could effect. I s aw yet more distinctl y the State in which I lived. I saw t o what extent the people among whom I l ived could be trusted as good nei ghbors and friends; that their friendship was for summer weather onl y; that they did not greatly propose to do right; that they were a distinct race from me b y their prejudices and superstitions, as the Chinamen and Mala ys are; that, in their s acrifices to humanit y, they ran no risks, not even to their propert y; that, after all, they were not so noble but they treated the thief as he had treated them, and hoped, b y a certain outward observance and a few pra yers, and by walking in a particular strai ght though usel ess path from time to time, to save their souls. This may be to judge my neighbors

22

CIV IL DISOBEDIENCE

harshl y; for I believe that man y of them are not aware that the y have such an institution as the jail in their village. It was formerl y the custom in our village, when a poor debtor came out of jail, for his acquaintances to sal ute him, looking through their fingers, which were crossed to represent the grating of a j ail window, “How do ye do? ” My nei ghbors did not thus salute me, but first looked at me, and then at one another, as if I had returned from a long journey. I was put into jail as I was goin g to the shoemaker’s to get a shoe which was mended. When I was let out the next morning, I proceeded to finish my errand, and, having put on m y mended shoe, joined a huckleberr y part y, who were impatient to put themselves under my conduct; and in half an hour,—for the horse was soon tackled,—was in the midst of a huckleberr y field, on one of our highest hills, two miles off, and then the State was nowhere to be seen. This is the whole history of “M y Prisons.”

I have never declined payi ng the hi ghwa y tax, because I am as desirous of being a good neighbor as I am of being a bad subject; and, as for supporting schools, I am doing my part to educate m y fellow-countr ymen now. It is for no particular it em in the tax -bill that I refuse to pa y it. I simpl y wish to refuse allegi ance to the State, to withdraw and st and aloof from it effectuall y. I do not care to trace the cours e of my dollar, if I could, till it buys a man, or a musket to shoot one with,—the dollar is innocent,—but I am concerned to trace the effects of m y allegiance. In fact, I qui etl y declare war with the State, after m y fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases. If others pa y the tax which is demanded of me, from a s ympath y with the State, they do but what the y have alread y done in their own case, or rat her the y abet injustice to a great er extent than the State requires. If they pa y the tax from a mistaken interest in the individual taxed, to save his propert y, or prevent his going to

HENRY DAVID THOREAU

23

jail, it is because they have not considered wisel y how far the y let their private feelings interfere with the public good. This, then, is my position at pres ent. But one cannot be too much on his guard in such a case, lest his action be biased by obstinacy, or an undue regard for the opinions of men. Let him see that he does onl y what belongs to himself and to the hour. I think sometimes, Why, this people mean well; they are onl y ignorant; the y would do better if the y knew how; wh y give your neighbors this pain to treat you as the y are not inclined to? But I think, again, This is no reason wh y I should do as the y do, or permit others to suffer much greater pain of a different kind. Again, I sometimes sa y to myself, When man y millions of men, without heat, without ill-will, without personal feeling of an y kind, demand of you a few shil lings onl y, without the possibilit y, such is their constitution, of retracting or altering their present demand, and without the possibilit y, on your side, of appeal to an y other millions, why expose yourself to this overwhelming brut e force? You do not resist cold and hunger, the winds and the waves, thus obstinatel y; you quietl y submit to a thousand similar necessities. You do not put your head into the fire. But just i n proportion as I regard this as not wholl y a brute force, but partl y a human force, and consider that I have relations to those millions as to so man y millions of men, and not of mere brute or inanimate things, I see that appeal is possible, first and instantaneousl y, from them to the Maker of them, and, s econdl y, from them to themselves. But, if I put my head deliberatel y into the fire, there is no appeal to fire or to the Maker of fire, and I have onl y m ys elf to blame. If I could convince m yself that I have an y ri ght to be s atisfied with men as they are, and to treat them accordingl y, and not according, in some respects, to my requisitions and expectations of what they and I ought to be, then, like a good Mussulman and fatalist, I should endeavor to be satisfied with things as the y are, and sa y it is the will of God. And, above all, there is this difference between

24

CIV IL DISOBEDIENCE

resisting this and a purel y brute or natural force, that I can resist this with some effect; but I cannot expect, like Orpheus, to change

the nature of the rocks and trees and beasts.

  • I do not wish to quarrel with any man or nation. I do not wish

to split hairs, to make fine distinctions, or set mys elf up as better than my neighbors. I s eek rather, I ma y sa y, even an excuse for

conforming to the laws of the land. I am but too read y to conform to them. Indeed, I have reason to suspect mys elf on this head; and each year, as the tax-gat herer comes round, I find myself disposed to review the acts and position of the general and State governments, and the spirit of the people, to discover a pretext for conformit y.

“We must affect our country as our parents, And if at an y time we alienate Our love or industr y from doing it honor, We must respect effects and teach the soul Matter of cons cience and religion, And not desire of rul e or benefit.”

  • I believe that the State will soon be able to take all my work

of this sort out of my hands, and then I shall be no better a patriot than my fellow-countr ymen. Seen from a lower point of view, the Constitution, with all its faults, is very good; the l aw and the courts are ver y respectable; even this State and this American government are, in many respects, very admirable and rare things, to be thankful for, such as a great man y have described them; but seen from a point of view a little higher, the y are what I have des cribed them; seen from a higher still, and the highest, who shall say what they are, or that the y are worth looking at or thinking of at all? However, the government does not concern me much, and I shall bestow the fewest possible thoughts on it. It is not many moments that I live under a government, even i n this world. If a

HENRY DAVID THOREAU 25

man is thought-free, fancy-free, imagination-free, that which is not never for a long time appearing to be to him, unwise rulers or reformers cannot fatall y i nterrupt him. I know that most men think differentl y from mys elf; but those whose lives are by profession devoted to the study of these or kindred subjects, content me as little as any. Statesmen and legislators, standing so completel y within the institution, never distinctl y and nakedl y behold it. They speak of moving societ y, but have no resting-place without it. They ma y be men of a certain experience and discrimination, and have no doubt invented ingenious and even useful s yst ems, for which we sincerel y thank them; but all their wit and usefulness lie within certain not ver y wide limits. They are wont to forget that the worl d is not governed by policy and expediency. Webster never goes behind government, and so cannot speak with authorit y about it. His words are wisdom to those legislators who contemplate no essenti al reform in the existing government; but for thinkers, and thos e who legislate for all time, he never once glances at the subject. I know of those whose serene and wise speculations on this theme would soon reveal the limits of his mind’s range and hospitality. Yet, compared with the cheap professions of most reformers, and the still cheaper wisdom and eloquence of politicians in general, his are almost the onl y sensible and valuable words, and we thank Heaven for him. Comparativel y, he is always strong, ori ginal, and, above all, practical. Still his qualit y is not wisdom, but prudence. The lawyer’s truth is not truth, but consistency, or a consistent expediency. Truth is alwa ys in harmony with herself, and is not concerned chiefl y to reveal the justice that may consist with wrong-doing. He well deserves to be called, as he has been called, the Defender of the Constitution. There are really no blows to be given b y him but defensi ve ones. He is not a leader, but a follower. His leaders are the men of ’87. “I have never made an effort,” he says, “and never propose to make an effort ; I have never

26

CIV IL DISOBEDIENCE

countenanced an effort, and never mean to countenance an effort, to disturb the arrangement as ori ginall y made, b y which the various States came into the Union.” Still thinking of the s anction which the Constitution gives to slaver y, he s a ys, “Becaus e it was a part of the original compact,—let it stand.” Notwithstanding his special acut eness and abilit y, he is unable to take a fact out of its merel y political rel ations, and behold it as it lies absolutel y to be disposed of by the intellect,—what, for instance, it behooves a man to do here in America to -da y with regard to slaver y, but ventures, or is driven, to make some such desperate answer as the following, while professing to speak absolutel y, and as a private man,—from which what new and singular code of social duties might be inferred? —“The manner, ” sa ys he, “in whi ch the governments of those States where slavery exists are to regul ate it, is for their own consideration, under their responsibilit y to their constituents, to the general laws of propriet y, humanit y, and justice, and to God. Associations formed elsewhere springing from a feeling of humanit y, or an y other cause, have nothing whatever to do with it. They have never received any encouragement from me and they never will.” 1 They who know of no purer sources of truth, who have traced up its stream no higher, stand, and wisel y stand, by the Bible and the Constitution, and drink at it there with reverence and humilit y; but they who behold where it comes trickling into this lake or that pool, gird up their loins once more, and continue their pil grimage toward its fountain-head. No man with a genius for legislation has appeared in America. The y are rare in the history of the world. There are orators, politicians, and eloquent men, b y the t housand; but the speaker has not yet opened his mouth to speak, who is capable of settling the much-vexed questions of the day. We love eloquence for its own sake, and not for any truth which it may utter, or an y

1 T hese extracts ha ve been inse rted since the lecture was read .

HENRY DAVID THOREAU 27

heroism it may inspire. Our legislators have not yet l earned the comparative value of free-trade and of freedom, of union, and of rectitude, to a nation. The y have no genius or talent for comparativel y humble questions of taxation and finance, commerce and manufact ures and agriculture. If we were left solel y to the wordy wit of legislators in Congress for our guidance, uncorrected b y the seasonable experience and the effectual complaints of the people, America would not long retain her rank among the nations. For eighteen hundred years, though perchance I have no ri ght to sa y it, t he New Testament has been written; yet where is the legislator who has wisdom and practical talent enough to avail himself of the light whi ch it sheds on the sci ence of legislation? The authorit y of government, even such as I am willing to submit to,—for I will cheerfull y obe y thos e who know and can do better than I, and in many things even those who neither know nor can do so well,—is still an impure one: to be strictl y just, it must have the sanction and consent of the governed. It can have no pure right over m y person and propert y but what I concede to it. The progress from an absolute to a limited monarchy, from a limited monarch y to a democracy, is a progress toward a true respect for the individual. Even the Chinese philosopher was wise enough to regard the individual as the basis of the empire. Is a democrac y, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the ri ghts of man? There will never be a reall y free and enlightened State, until the State comes to recognize the individual as a hi gher and independent power, from which all its own power and authorit y are derived, and treats him accordingl y. I pl ease myself with imagining a State at last which can afford to be just to all men, and to treat the individual with respect as a neighbor; which even would not think it inconsistent with its own repos e, if a few were to live aloof from it, not meddling with it, nor embraced

28

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by it, who fulfilled all the duties of neighbors and fellow-men. A State which bore this ki nd of fruit, and suffered it to drop off as fast as it ripened, would prepare the wa y for a still more perfect and glorious State, which also I have imagined, but not yet anywhere seen.

12

The Public Sector, III: Police, Law, and the Courts

Police Protection

THE MARKET AND PRIVATE ENTERPRISE do exist, and so most people can readily envision a free market in most goods and services. Probably the most difficult single area to grasp, however, is the abolition of government operations in the service of protection: police, the courts, etc.—the area encompassing defense of person and property against attack or invasion. How could private enterprise and the free market possibly provide such service? How could police, legal systems, judicial services,

law enforcement, prisons— how could these be provided in a free market? We have already seen how a great deal of police protection, at the least, could be supplied by the various owners of streets and land areas. But we now need to examine this entire area systematically.

In

the

first place, t here

is

a common

fallacy,

held even by most

advocates of laissez- faire, that the government must supply “police pro- tection,” as if police protection were a single, absolute entity, a fixed quantity of something which the government supplies to all. But in actual fact there is no absolute commodity called “police protection” any more than there is an absolute single commodity called “food” or “shelter.” It is true that everyone pays taxes for a seemingly fixed quantity of protection, but this is a myth. In actual fact, there are almost infinite degrees of all sorts of protection. For any given person or business, the police can provide everything from a policeman on the beat who patrols once a night, to two policemen patrolling constantly on each block, to cruising patrol cars, to one or even several round - the- clock personal bodyguards. Furthermore, there are many other decisions the police must make, the complexity of which becomes evident as soon as we look beneath the veil of the myth of absolute “protec tion.” How shall the police allocate their

220

Libertarian Applications to Current Problems

funds which are, of course, always limited as are the funds of all other individuals, organizations, and agencies? How much shall the police invest in electronic equipment? fingerprint ing equipment? detectives as against uniformed police? patrol cars as against foot police, etc? The point is that the government has no rational way to make these allocations. The government only knows that it has a limited budget. Its allocations of funds are then subject to the full play of politics, boon- doggling, and bureaucratic inefficiency, with no indication at all as to whether the police department is serving the consumers in a way respon- sive to their desires or whether it is doing so efficiently. The situation would be dif ferent if police services were supplied on a free, competitive market. In that case, consumers would pay for whatever degree of protec-

tion they wish to purchase.

The consumers who just

want to

see

a

policeman once in a while would pay less than those who want continuous patrolling, and far less than those who demand twenty- four- hour bodyguard service. On the free market, protection would be supplied in proportion and in whatever way that the consumers wish to pay for it. A drive for efficiency would be insured, as it always is on the market, by the compulsion to make profits and avoid losses, and thereby to keep costs low and to serve the highest demands of the consumers. Any police firm that suffers from gross inefficiency would soon go bank rupt and disappear. One big problem a government police force must always face is: what laws really to enforce? Police departments are theoretically faced with the absolute injunction, “enforce all laws,” but in practice a limited budget forces them to allocate their personnel and equipment to the most urgent crimes. But the absolute dictum pursues them and works against a rational allocation of resources. On the free market, what would be enforced is whatever the customers are willing to pay for. Suppose, for example, that Mr. Jones has a precious gem he believes might soon be stolen. He can ask, and pay for, round - the - clock police protection at whatever strength he may wish to work out with the police company. He might, on the other hand, also have a private road on his estate he doesn’t want many people to travel on—but he might not care very much about trespassers on that road. In that case, he won’t devote any police resources to protecting the road. As on the market in general, it is up to the consumer— and since all of us are consumers this means each person individually decides how much and what kind of protection he wants and is willing to buy.

The Public Sector, III: Police, Law, and the Courts 221

All that we have said about landowners’ police applies to private police in general. Free- market police would not only be efficient, they would have a strong incentive to be courteous and to refrain from brutality against either their clients or their clients’ friends or customers. A private Central Park would be guarded efficiently in order to maximize park revenue, rather than have a prohibitive curfew imposed on innocent —and paying—customers. A free market in police would reward efficient and courteous police protection to customers and penalize any falling off from this standard. No longer would there be the current disjunction between service and payment inherent in all government operations, a disjunction which means that police, like all other government agencies, acquire their revenue, not voluntarily and competitively from consumers, but from the taxpayers coercively. In fact, as government police have become increasingly inefficient, consumers have been turning more and more to private forms of protec- tion. We have already mentioned block or neighborhood protection. There are also private guards, insurance companies, private detectives, and such increasingly sophisticated equipment as safes, locks, and closed- circuit TV and burglar alarms. The President’s Commission on Law Enforcement and the Administration of Justice estimated in 1969 that government police cost the American public $2.8 billion a year, while it spends $1.35 billion on private protection service and another $200 million on equipment, so that private protection expenses amounted to over half the outlay on government police. These figures should give pause to those credulous folk who believe that police protection is some how, by some mystic right or power, necessarily and forevermore an attribute of State sovereignty. 1 Every reader of detective fiction knows that private insurance detec- tives are far mor e efficient than the police in recovering stolen property. Not only is the insurance company impelled by economics to serve the consumer—and thereby try to avoid paying benefits—but the major focus of the insurance company is very different from that of the police. The police, standing as they do for a mythical “society,” are primarily interested in catching and punishing the criminal; restoring the stolen loot to the victim is strictly secondary. To the insurance company and its detectives, on the other ha nd, the prime concern is recovery of the loot, and apprehension and punishment of the criminal is secondary to the prime purpose of aiding the victim of crime. Here we see again the

222

Libertarian Applications to Current Problems

difference between a private firm impelled to serve the customer- victim of crime and the public police, which is under no such economic compulsion. We cannot blueprint a market that exists only as an hypothesis, but it is reasonable to believe that police service in the libertarian society would be supplied by the landowners or by insurance companies. Since insurance companies would be paying benefits to victims of crime, it is highly likely that they would supply police service as a means of keeping down crime and hence their payment of benefits. It is certainly likely in any case that police service would be paid for in regular monthly premiums, with the police agency— whether insurance company or not—called on whenever needed. This supplies what should be the first simple answer to a typical nightmare question of people who first hear about the idea of a totally private police: “Why, that means that if you’re attacked or robbed you have to rush over to a policeman and start dickering on how much it will cost to defend you.” A moment’s reflection should show that no service is sup plied in this way on the free market. Obviously, the person who wants to be protected by Agency A or Insurance Company B will pay regular premiums rather than wait to be attacked before buying protection. “But

suppose an emergency occurs and a Company A po lice man sees someone being mugged; will he stop to ask if the victim has bought insurance from Company A?” In the first place, this sort of street crime will be taken care of, as we noted above, by the police hired by whoever owns the street in question. But what of the unlikely case that a neighborhood does not have street police, and a policeman of Company A happens to see someone being attacked? Will he rush to the victim’s defense? That, of course,

would be up to Company A, but

it is scarcely conceivab le that private

police companies would not cultivate goodwill by making it a policy to give free aid to victims in emergency situations and perhaps ask the

rescued victim for a voluntary donation

afterward. In the case

of

a

homeowner being robbed or at tacked, then of course he will

call on

whichever police company he has been using. He will call Police Company A rather than “the police” he calls upon now. Competition insures efficiency, low price, and high quality, and there is no reason to assume a priori, as many people do, that there is something divinely ordained about having only one police agency in a given geo- graphical area. Economists have often claimed that the production of certain goods or services is a “natural monopoly,” so that more than one private agency could not long survive in a given area. Perhaps, although

The Public Sector, III: Police, Law, and the Courts 223

only a totally free market could decide the matter once and for all. Only the market can decide what and how many firms, and of what size and

quality, can survive in active competitio n.

But

there

is

no reason

to

suppose in advance that police protection is a “natural monopoly.” After all, insurance companies are not; and if we can have Metropolitan, Equitable, Prudential, etc., insurance companies coexist ing side by side, why not Metropolitan, Equitable, and Prudential police protection companies? Gustave de Molinari, the nineteenth- century French free- market economist, was the first person in history to contemplate and advocate a free market for police protection. 2 Molinari estimated that there would eventually turn out to be several private police agencies side by side in the cities, and one private agency in each rural area. Perhaps—but we

must realize that modern technology makes much more feasible branch offices of large urban firms in even the most re mote rural areas. A person living in a small village in Wyoming, there fore, could employ the services of a local protection company, or he might use a nearby branch office of the Metropolitan Protection Company. “But how could a poor person afford private protection he would have to pay for instead of getting free protection, as he does now?” There are several answers to this question, one of the most common criticisms of the idea of totally private police protection. One is: that this problem of course applies to any commodity or service in the libertar ian society, not just the police. But isn’t protection necessary? Perhaps, but then so is food of many different kinds, clothing, shelter, etc. Surely these are at least as vital if not more so than police protection, and yet almost nobody says that therefore the government must nationalize food, clothing, shelter, etc., and supply these free as a compulsory monop oly. Very poor people would be

supplied, in general, by

private

charit y,

as

we

saw

in

our

chapter on

welfare. Furthermore, in the

specific

case

of

police

there

would

undoubtedly be ways of voluntarily supplying free police protection to the indigent — either by the police companies themselves for goodwill (as hospitals and doc tors do now) or by special “police aid” societies that would do work similar to “legal aid” societies today. (Legal aid societies voluntarily supply free legal counsel to the indigent in trouble with the authorities.)

2 Cf. Gustave de Molinari, The Production of Security (New York: Center for Libertarian Studies, 1977).

224

Libertarian Applications to Current Problems

There are important supplementary cons iderations. As we have seen, police service is not “free”; it is paid for by the taxpayer, and the taxpayer is very often the poor person himself. He may very well be paying more in taxes for police now than he would in fees to private, and far more efficient, police companies. Furthermore, the police companies would be tapping a mass market; with the economies of such a large - scale market, police protection would undoubtedly be much cheaper. No police company would wish to price itself out of a large chunk of its market, and the cost of protection would be no more prohibitively expensive than, say, the cost of insurance today. (In fact, it would tend to be much cheaper than current insurance, because the insurance indus try today is heavily regulated by government to keep out low- cost competition.) There is a final nightmare which most people who have contemplated private protection agencies consider to be decisive in rejecting such a concept. Wouldn’t the agencies always be clashing? Wouldn’t “anarchy” break out, with perpetual conflicts between police forces as one person calls in “his” police while a rival calls in “his”? There are several levels of answers to this crucial question. In the first place, since there would be no overall State, no central or even single local government, we would at least be spared the horror of inter State wars, with their plethora of massive, superdestructive, and now nuclear, weapons. As we look back through history, isn’t it painfully clear that the number of people killed in isolated neighborhood “rumbles” or conflicts is as nothing to the total mass devastation of interState wars? There are good reasons for this. To avoid emotionalism let us take two hypothetical countries: “Ruritania” and “Walldavia.” If both Ruritania and Walldavia were dissolved into a libertarian society, with no government and innumerable private individuals, firms, and police agencies, the only clashes that could break out would be local, and the weaponry would necessarily be strictly limited in scope and devastation. Suppose that in a Ruritanian city two police agencies clash and start shooting it out. At worst, they could not use mass bombing or nuclear destruction or germ warfare, since they themselves would be blown up in the holocaust. It is the slicing off of territorial areas into single, governmental monopolies

that leads to mass destruction— for then

if

the

single monopoly

government of Walldavia confronts its ancient rival, the government of Ruritania, each can wield weapons of mass destruct ion and even nuclear warfare because it will be the “other guy” and the “other country” they will hurt. Furthermore, now that every person is a subject of a monopoly

The Public Sector, III: Police, Law, and the Courts 225

government,

in

the

eyes

of

every

other

government

he

becomes

irretrievably identified with “his” government. The citizen of France is identified with “his” government, and therefore if another government attacks France, it will attack the citizenry as well as the government of France. But if Company A battles with Company B, the most that can happen is that the respective customers of each company may be dragged into the battle—but no one else. It should be evident, then, that even if the worst happened, and a libertarian world would indeed become a world of “anarchy,” we would still be much better off than we are now, at the mercy of rampant, “anarchic” nation- states, each possessing a fearsome monopoly of weapons of mass destruction. We must never forget that we are all living, and always have lived, in a world of “international anarchy,” in a world of coercive nation- states unchecked by any overall world government, and there is no prospect of this situation changing. A libertarian world, then, even if anarchic, would still not suffer the brutal wars, the mass devastation, the A- bombing, that our State- ridden world has suffered for centuries. Even if local police clash continually, there would be no more Dresdens, no more Hiroshimas. But there is far more to be said. We should never concede that this local “anarchy” would be likely to occur. Let us separate the problem of police clashes into distinct and different parts: honest disagreements, and the attempt of one or more police forces to become “outlaws” and to extract funds or impose their rule by coercion. Let us assume for a moment that the police forces will be honest, and that they are only driven by honest clashes of opinion; we will set aside for a while the problem of outlaw police. Surely one of the very important aspects of protection service the police can offer their respective cus tomers is quiet protection. Every consumer, every buyer of police protection, would wish above all for protection that is efficient and quiet, with no conflicts or disturbances. Every police agency would be fully aware of this vital fact. To assume that police would continually clash and battle with each other is absurd, for it ignores the devastating effect that this chaotic “anarchy” would have on the business of all the police companies. To put it bluntly, such wars and conflicts would be bad—very bad— fo r business. Therefore, on the free market, the police agencies would all see to it that there would be no clashes between them, and that all conflicts of opinion would be ironed out in private courts, decided by private judges or arbitrators. To get more specific: in the first place, as we have said, clashes would be minimal because the street owner would have his guards, the store-

226

Libertarian Applications to Current Problems

keeper his, the landlord his, and the homeowner his own police company. Realistically, in the everyday world there would be lit tle room for direct clashes between police agencies. But suppose, as will sometimes occur two neighboring home owners get into a fight, each accuses the other of initiating assault or violence, and each calls on his own police company, should they happen to subscribe to different companies. What then? Again, it would be pointless and economically as well as physically self- destructive for the two police companies to start shooting it out. Instead, every police company, to remain in business at all, would announce as a vital part of its service, the use of private courts or arbitrators to decide who is in the wrong.

The Courts

Suppose, then, that the judge or arbitrator decides Smith was in the wrong in a dispute, and that he aggressed against Jones. If Smith accepts the verdict, then, whatever damages or punishment is levied, there is no problem for the theory of libertarian protection. But what if he does not

accept it? Or suppose another example: Jones is robbed. He sets his police company to do detective work in trying to track down the criminal. The company decides that a certain Brown is the criminal. Then what? If Brown acknowledges his guilt, then again there is no problem and judicial punishment proceeds, centering on forcing the criminal to make restitution to the victim. But, again, what if Brown denies his guilt?

These cases

take us

out

of the realm of police protection and into

another vital area of protection: judicial service, i.e., the provision, in accordance with generally accepted procedures, of a method of trying as best as one can to determine who is the criminal, or who is the breaker of contracts, in any sort of crime or dispute. Many people, even those who acknowledge that there could be privately competitive police service supplied o n a free market, balk at the idea of totally private courts. How in the world could courts be private? How would courts employ force in a world without government? Wouldn’t eternal conflicts and “anarchy” then ensue? In the first place, the monopoly courts of government are subject to the same grievous problems, inefficiencies, and contempt for the consumer as any other government operation. We all know that judges, for example,

The Public Sector, III: Police, Law, and the Courts 227

are not

selected according to their wisdom, probity, or efficiency in

serving the consumer, but are political hacks chosen by the political process. Furthermore, the courts are monopolies; if, for example, the courts in some town or city should become corrupt, venal, oppressive, or

inefficient, the citizen at present has no recourse. The aggrieved citizen of Deep Falls, Wyoming, must be governed by the local Wyoming court or not at all. In a libertarian society, there would be many courts, many

judges to

whom he could turn. Again, there is no reason

to

assume a

“natural monopoly” of judicial wisdom. The Deep Falls citizen could, for example, call upon the local branch of the Prudential Judicial Company. How would courts be financed in a free society? There are many possibilities. Possibly, each individual would subscribe to a court se rvice, paying a monthly premium, and then calling upon the court if he is in need. Or, since courts will probably be needed much less frequently than

policemen, he may pay a fee whenever he chooses to use the court, with the criminal or contract- breaker eventually recompensing the vic tim or plaintiff. Or, in still a third possibility, the courts may be hired by the police agencies to settle disputes, or there may even be “vertically integrated” firms supplying both police and judicial service: the Prudent ial Judicial Company might have a police and a judicial division. Only the market will be able to decide which of these methods will be most appropriate.

We should

all

be

more familiar with the increasing use of private

arbitration, even in our present soc iety. The government courts have become so clogged, inefficient, and wasteful that more and more parties to disputes are turning to private arbitrators as a cheaper and far less time- consuming way of settling their disputes. In recent years, private arbitration has become a growing and highly successful profession. Being voluntary, furthermore, the rules of arbitration can be decided rapidly by the parties themselves, without the need for a ponderous, complex legal framework applicable to all citizens. Arbitration therefore permits judgments to be made by people expert in the trade or occupation con- cerned. Currently, the American Arbitration Association, whose motto is “The Handclasp is Mightier than the Fist,” has 25 regional offices throughout the country, with 23,000 arbitrators. In 1969, the Association conducted over 22,000 arbitrations. In addition, the insurance companies adjust over 50,000 claims a year through voluntary arbitration. There is also a growing and successful use of private arbitrators in automobile accident claim cases.

228

Libertarian Applications to Current Problems

It might be protested that, while performing an ever greater propor tion of judicial functions, the private arbitrators’ decisions are still enforced by the courts, so that once the disputing parties agree on an arbitrator, his decision becomes legally binding. This is true, but it was not the case

before 1920, and the arbitration profession grew at as rapid a rate from 1900 to 1920 as it has since. In fact, the modern arbitra tion movement began in full force in England during the time of the American Civil War, with merchants increasingly using the “private courts” provided by voluntary arbitrators, even though the decisions were not legally binding. By 1900, voluntary arbitration began to take hold in the United States. In fact, in medieval England, the entire struc ture of merchant law, which was handled clumsily and inefficiently by the government’s courts, grew up in private merchants’ courts. The merchants’ courts were purely voluntary arbitrators, and the decisions were not legally binding. How, then, were they successful?

The answer is that

the merchants, in the Middle Ages and down to

1920, relied solely on ostracism and boycott by the other merchants in the area. In other words, should a merchant refuse to submit to arbitra tion or ignore a decision, the other merchants would publish this fact in the trade, and would refuse to deal with the recalcitrant merchant, bringing him quickly to heel. Wooldridge mentions one medieval example:

Merchants made their courts wo rk simply by agreeing to abide by the results. The merchant who broke the understanding would not be sent to jail, to be sure, but neither would he long continue to be a merchant, for the compliance exacted by his fellows, and their power over his goods, p roved if anything more effective than physical coercion. Take John of Homing, who made his living marketing wholesale quantities of fish. When John sold a lot of herring on the representation that it conformed to a three -barrel sample, but which, his fello w merchants found, was actually mixed with “sticklebacks and putrid herring,” he made good the deficiency on pain of economic ostracism. 3

In modern times, ostracism became even more effective, and it included the knowledge that anyone who ignored an arbit rator’s award could never again avail himself of an arbitrator’s services. Industrialist Owen D. Young, head of General Electric, concluded that the moral censure of other businessmen was a far more effective sanction than legal

The Public Sector, III: Police, Law, and the Courts 229

enforce ment. Nowadays, mod ern technology, computers, and credit ratings would make such nationwide ostracism even more effective than it has ever been in the past. Even if purely voluntary arbitration is sufficient for commercial dis- putes, however, what of frankly criminal activit ies: the mugger, the rapist, the bank robber? In these cases, it must be admitted that ostracism would probably not be sufficient —even though it would also include, we must remember, refusal of private street owners to allow such crimi nals in their areas. For the criminal cases, then, courts and legal enforce ment become necessary. How, then, would the courts operate in the libertarian society? In particular, how could they enforce their decisions? In all their operations, furthermore, they must observe the critical libertarian rule that no physical force may be used against anyone who has not been convicted as a criminal—otherwise, the users of such force, whether police or courts, would be themselves liable to be convicted as aggressors if it turned out that the person they had used force against was innocent of crime. In contrast to statist systems, no policeman or judge could be granted special immunity to use coercion beyond what anyone else in society could use.

Let us now take the case we mentioned before. Mr. Jones is robbed, his hired detective agency decides that one Brown committed the crime, and Brown refuses to concede his guilt. What then? In the first place, we must

recognize

that

there

is

at

present

no

overall

world

court

or

world

government enforcing

its

decrees;

yet

while

we

live

in

a

state

of

“international anarchy” there is little or no problem in disputes be tween private citizens of two countries. Suppose that right now, for example, a citizen of Uruguay claims that he has been swindled by a citizen of Argentina. Which court does he go to? He goes to his own, i.e., the victim’s or the plaintiff’s court. The case proceeds in the Uruguayan court, and its decision is honored by the Argentinian court. The same is true if an American feels he has been swindled by a Cana dian, and so on. In Europe after the Roman Empire, when German tribes lived side by side and in the same areas, if a Visigoth felt that he had been injured by a Frank, he took the case to his own court, and the decision was generally accepted by the Franks. Going to the plaintiff’s court is the rational libertarian procedure as well, since the victim or plaintiff is the one who is aggrieved, and who naturally takes the case to his own court. So, in our case, Jones would go to the Prudential Court Company to charge Brown with theft.

230

Libertarian Applications to Current Problems

It is possible, of course, that Brown is also a client of the Prudential Court, in which case there is no problem. The Prudential’s decision covers both parties, and becomes binding. But one important stipulation is that no coercive subpoena power can be used against Brown, because he must be considered innocent until he is convicted. But Brown would be served with a voluntary subpoena, a notice that he is being tried on such and such a charge and invit ing him or his legal representative to appear. If he does not appear, then he will be tried in absentia, and this will obviously be less favorable for Brown since his side of the case will not be pleaded in court. If Brown is declared guilty, then the cour t and its marshals will employ force to seize Brown and exact whatever punishment is decided upon—a punishment which obviously will focus first on restitution to the victim. What, however, if Brown does not recognize the Prudential Court? What if he is a client of the Metropolitan Court Company? Here the case becomes more difficult. What will happen then? First, victim Jones pleads his case in the Prudential Court. If Brown is found innocent, this ends the controversy. Suppose, however, that defendant Brown is found guilty. If he does nothing, the court’s judgment proceeds against him. Suppose, however, Brown then takes the case to the Metropolitan Court Company, pleading inefficiency or venality by Prudential. The case will then be heard by Metropolitan. If Metropolitan also finds Brown guilty, this too ends the controversy and Prudential will proceed against Brown with dispatch. Suppose, however, that Metropolitan finds Brown innocent of the charge. Then what? Will the two courts and their arms- wielding marshals shoot it out in the streets? Once again, this would clearly be irrational and self- destructive behav- ior on the part of the courts. An essential part of their judicial service to their clients is the provision of just, objective, and peacefully funct ioning decisions—the best and most objective way of arriving at the truth of who committed the crime. Arriving at a decision and then allowing chaotic gunplay would scarcely be considered valuable judicial service by their customers. Thus, an essential part of any court’s service to its clients would be an appeals procedure. In short, every court would agree to abide by an appeals trial, as decided by a voluntary arbitrator to whom Metropolitan and Prudential would now turn. The appeals judge would make his decision, and the result of this third trial would be treated as binding on the guilty. The Prudential court would then proceed to enforcement.

The Public Sector, III: Police, Law, and the Courts 231

An appeals court! But isn’t this setting up a compulsory monopoly government once again? No, because there is nothing in the system that requires any one person or court to be the court of appeal. In short, in the United States at present the Supreme Court is established as the court of final appeal, so the Supreme Court judges become the final arbiters regardless of the wishes of plaintiff or defendant alike. In contrast, in the libertarian society the various competing private courts could go to any appeals judge they think fair, expert, and objective. No single appeals judge or set of judges would be foisted upo n society by coercion. How would the appeals judges be financed? There are many possible ways, but the most likely is that they will be paid by the various original courts who would charge their customers for appeals services in their premiums or fees. But suppose Brown insists on another appeals judge, and yet another? Couldn’t he escape judgment by appealing ad infinitum? Obviously, in any society legal proceedings cannot continue indefinitely; there must be some cutoff point. In the present statist society, where government monopolizes the judicial function, the Supreme Court is arbitrarily desig- nated as the cutoff point. In the libertarian society, there would also have to be an agreed- upon cutoff point, and since there are only two parties to any crime or dispute— the plaintiff and the defendant— it seems most sensible for the legal code to declare that a decision arrived at by any two courts shall be binding. This will cover the situation when both the plaintiff’s and the defendant’s courts come to the s ame decision, as well as the situation when an appeals court decides on a disagreement between the two original courts.

The Law and the Courts

It is now clear that there will have to be a legal code in the libertarian society. How? How can there be a le gal code, a system of law without a

government to promulgate

it,

an

appointed

system

of

judges,

or

a

legislature to vote on statutes? To begin with, is a legal code consistent with libertarian principles? To answer the last question first, it should be cle ar that a legal code is necessary to lay down precise guidelines for the private courts. If, for example, Court A decides that all redheads are inherently evil and must be

232

Libertarian Applications to Current Problems

punished, it is clear that such decisions are the reverse of libertar ian, that such a law would constitute an invasion of the rights of redheads. Hence, any such decision would be illegal in terms of libertarian principle, and could not be upheld by the rest of society. It then becomes necessary to have a legal code which would be generally accepted, and which the courts would pledge themselves to follow. The legal code, simply, would insist on the libertarian principle of no aggression against person or

property, define property rights in accordance with libertarian principle, set up rules of evidence (such as currently apply) in decid ing who are the wrongdoers in any dispute, and set up a code of maximum punishment for any particular crime. Within the framework of such a code, the particular courts would compete on the most efficient procedures, and the market would then decide whether judges, juries, etc., are the most efficient methods of providing judicial services. Are such stable and consistent law codes possible, with only competing judges to develop and apply them, and without government or legisla ture? Not only are they possible, but over the years the best and most successful

parts

of

our

legal

system

were

developed

precisely

in

this

manner.

Legislatures,

as

well

as

kings,

have

been

capricious,

invasive,

and

inconsistent. The y have only introduced anomalies and despotism into the legal system. In fact, the government is no more qualified to develop and apply law than it is to provide any other service; and just as religion has been separated from the State, and the economy can be separated from the State, so can every other State function, including police, courts, and the law itself! As indicated above, for example, the entire law merchant was devel- oped, not by the State or in State courts, but by private merchant courts. It was only much later that government took over mercantile law from its development in merchants’ courts. The same occurred with admiralty law, the entire structure of the law of the sea, shipping, salvages, etc. Here again, the State was not interested, and its jurisdiction did not apply to the high seas; so the shippers themselves took on the task of not only applying, but working out the whole structure of admiralty law in their

own private courts. Again,

it

was

only

later

that

the

government

appropriated admiralty law into its own courts. Finally, the major body of Anglo- Saxon law, the justly celebrated common law, was developed over the centuries by competing judges applying time- honored principles rather than the shifting decrees of the State. These pr inciples were not decided upon arbitrarily by any king or

The Public Sector, III: Police, Law, and the Courts 233

legis lature; they grew up over centuries by applying rational—and very often libertarian—principles to the cases before them. The idea of following precedent was developed, not as a blind service to the past, but because all the judges of the past had made their decisions in applying the generally accepted common law principles to specific cases and problems. For it was universally held that the judge did not make law (as he often does today); the judge’s task, his expertise, was in finding the law in accepted common law principles, and then applying that law to specific cases or to new technological or institutional conditions. The glory of the centuries- long development of the common law is testimony to their success. The common law judges, furthermore, functioned very much like private arbitrators, as experts in the law to whom private parties went with their disputes. There was no arbitrarily imposed “supreme court” whose decision would be binding, nor was precedent, though honored, considered as automatically binding either. Thus, the libertarian Italian jurist Bruno Leoni has written:

…courts of judicature could not easily enact arbitrary rules of their own in England, as they were never in a position to do so directly, that is to say, in the usual, sudden, widely ranging and imperious manner of legislators. More over, there were so many courts of justice in England and they were so jealous of one another that even the famous principle of the binding precedent was not openly recognized as valid by them until comparatively recent times. Besides, they could never decide anything that had not been previously brought before them by private persons. Finally, comparatively few people used to go before the courts to ask from them the rules deciding their cases. 4

And on the absence of “supreme courts”:

…it cannot be denied that the lawyers’ law or the judiciary law may tend to acquire the characteristics of legislation, including its undesirable ones, whenever jurists or judges are entitled to decide ultimately on a case…. In our time the mechanism of the judiciary in certain countries where “supreme courts are established results in the imposition of the personal views of the members of these courts, o r of a majority of them, on all the other people concerned whenever there is a great deal of disagreement between the opinion of the former and the convictions of the latter. But…this possibility, far from being

234

Libertarian Applications to Current Problems

necessarily implied in the nature of lawyers ’ law or of judiciary law, is rather a deviation from it…. 5

Apart from such aberrations, the imposed personal views of the judges

were kept to a minimum:

(a)

by the

fact that judges could only make

decisions when private citizens brought cases to them; (b) each judge’s decisions applied only to the particular case; and (c) because the decisions of the common- law judges and lawyers always considered the precedents of the centuries. Furthermore, as Leoni points out, in contrast to legisla- tures or the execut ive, where dominant majorities or pressure groups ride roughshod over minorities, judges, by their very position, are constrained to hear and weigh the arguments of the two contending parties in each dispute. “Parties are equal as regards the judge, in the sense that they are free to produce arguments and evidence. They do not constitute a group in which dissenting minorities give way to triumphant majorities….” And Leoni points out the analogy between this process and the free- market economy: “Of course, arguments may be stronger or weaker, but the fact that every party can produce them is comparable to the fact that everybody can individually compete with everybody else in the market in order to buy and sell.” Professor Leoni found that, in the private law area, the ancient Roman judges operated in the same way as the English common law courts:

6

The Roman jurist was a sort of scientist; the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concern ing their plants or their production. Hence, private Roman law was something to be described or to be discovered,

not something to be enacted —a

world

of

things that

were there ,

forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will…. This is the long -run concept or, if you prefer, the Roman concept, of the certainty of the law. 7

Finally, Professor Leoni was able to use his knowledge of the opera-

tions

of

ancient and common law to

answer the vital

question:

In

a

libertarian society, “who will appoint the judges

...

to let them perform the

  • 5 Ibid ., pp. 23– 24.

  • 6 Ibid ., p. 188.

  • 7 Ibid .,

pp. 84– 85.

The Public Sector, III: Police, Law, and the Courts 235

task of defining the law?” His answer is: the people t hemselves, people who would go to the judges with the greatest reputation of expertise and wisdom in knowing and applying the basic common legal principles of the society:

In fact, it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels…. For the appointment of judges is not such a special problem as would be, for example, that of “appointing” physicists or doctors or other kinds of learned and experi enced people. The emergence of good professional people in any society is only apparently due to official appointments, if any. It is, in fact, based on a widespread consent on the part of clients, colleagues, and the public at large—a consent without which no appointment is really effective. Of course, people can be wrong about the true value chosen as being worthy, but these difficulties in their choice are inescapable in any kind of choice. 8

Of course, in the future libertarian society, the basic legal code would not rely on blind custom, much of which could well be antilibertarian. The code would have to be established on the basis of acknowledged libertarian principle, of nonaggression against the person or property of others; in short, on the basis of reason rather than on mere tradition, however sound its general outlines. Since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air. The most remarkable historical example of a society of libertarian law and courts, however, has been neglected by historians until very recent ly.

And this was also a society where not only the courts and the law were largely libertarian, but where they operated within a purely state-less and libertarian society. This was ancient Ireland —an Ireland which persisted in this libertarian path for roughly a thousand years until its brutal conquest by England in the seventeenth century. And, in contrast to many similarly functioning primitive tribes (such as the Ibos in West Africa, and many European tribes), preconquest Ireland was not in any sense a

“primitive” society:

it

was

a

highly

complex

society

that

was,

for

centuries, the most advanced, most scholarly, and most civilized in all of

Western Europe.

236

Libertarian Applications to Current Problems

For a thousand years,

then,

ancient Celtic Ireland had no State or

anything like it. As the leading authority on ancient Irish law has writ ten:

“There was no legislature, no bailiffs, no police, no public enforce ment of justice…. There was no trace of State- administered justice.” 9 How then was justice secured? The basic political unit of ancient Irela nd was the tuath. All “freemen” who owned land, all professionals, and all craftsmen, were entitled to become members of a tuath. Each tuath’s members formed an annual assembly which decided all common policies, declared war or peace on other tuatha , and elected or deposed their “kings.” An important point is that, in contrast to primitive tribes, no one was stuck or bound to a given tuath, either because of kinship or of geographical location. Individual members were free to, and often did, secede from a t uath and join a competing tuath. Often, two or more tuatha decided to merge into a single, more efficient unit. As Professor Peden states, “the tuath is thus a body of persons voluntarily united for socially beneficial purposes and the sum total of the landed properties of its members constituted its territorial dimension.” 10 In short, they did not have the modern State with its claim to sovereignty over a given (usually expanding) territorial area, divorced from the landed prop erty rights of its subjects; on the contrary, tuatha were voluntary associa tions which only comprised the landed properties of its voluntary members. Historically, about 80 to 100 tuatha coexisted at any time throughout Ireland. But what of the elected “king”? Did he constitute a form of State ruler? Chiefly, the king functioned as a religious high priest, presiding over the worship rites of the tuath, which functioned as a voluntary religious, as well as a social and political, organization. As in pagan, pre- Christian, priesthoods, the kingly function was hereditary, this prac tice carrying over to Christian times. The king was elected by the tuath from within a royal kin- group (the derbfine ), which carried the hereditary priestly function. Politically, however, the king had strictly limited functions: he was the military leader of the tuath, and he presided over the tuath assemblies. But he could only conduct war or peace negotiations as agent of the assemblies; and he was in no sense sovereign and had no rights of

9 Quoted in the best in troduction to ancient, anarchistic Irish institutions, Joseph R. Pedea, “Property Rights in Celtic Irish Law,” Journal of Libertarian Studies I (Spring 1977), p. 83; see also pp. 81 – 95. For a summary, see Peden, “Stateless Societies: Ancient Ireland,” The Libertarian Forum (April 1971), pp. 3– 4. 10 Peden, “Stateless Societies,” p. 4.

The Public Sector, III: Police, Law, and the Courts 237

administering justice over tuath members. He could not legislate, and when he himself was party to a lawsuit, he had to submit his case to an independent judicial arbiter. Again, how, then, was law developed and justice maintained? In the first place, the law itself was based on a body of ancient and immemorial custom, passed down as oral and then written tradition through a class of professional jurists called the brehons. The brehons were in no sense public, or governmental, officials; they were simply selected by parties to disputes on the basis of their reputations for wisdom, knowledge of the customary law, and the integrity of their decisions. As Professor Peden states:

… the professional jurists were consulted by parties to disputes for advice as to what the law was in particular cases, and these same men often acted as arbitrators between suitors. They remained at all times private persons, not public officials; their functioning depended upon their knowledge of the law and the integrity of their judicial reputations .

11

Furthermore, the brehons had no connection whatsoever with the

individ ual tuatha or with their kings. They were completely private, national in scope, and were used by disputants throughout Ireland. Moreover, and this is a vital point, in contrast to the system of private Roman lawyers, the brehon was all there was; there were no other judges, no “public” judges of any kind, in ancient Ireland.

It

was the brehons who were schooled

in

the

glosses

and

applications

to

the

law

to

fit

law, and who added

changing

conditions.

Furthermore, there was no monopoly, in any sense, of the brehon jurists; instead, several competing schools of jurisprudence existed and competed for the custom of the Irish people. How were the decisions of the brehons enforced? Through an elabo rate, voluntarily developed system of “insurance,” or sureties. Men were linked together by a variety of surety relationships by which they guaranteed one another for the righting of wrongs, and for the enforcement of justice and the decisions of the brehons. In short, the brehons themselves were not involved in the enforcement of decisions, which rested again with private individuals linked through sureties. There were various types of surety. For example, the surety would guarantee with his own property the

  • 11 Ibid .

238

Libertarian Applications to Current Problems

payment of a debt, and then join the plaintiff in enforcing a debt judgment if the debtor refused to pay. In that case, the debtor would have to pay double damages: one to the original cred itor, and another as compensation to his surety. And this system applied to all offences, aggressions and assaults as well as commercial contracts; in short, it applied to all cases of what we would call “civil” and “crimi nal” law. All criminals were considered to be “debtors” who owed restitution and co mpensation to their victims, who thus became their “creditors.” The victim would gather his sureties around him and pro ceed to apprehend the criminal or to proclaim his suit publicly and demand that the defendant submit to adjudication of their dispute with the brehons. The criminal might then send his own sureties to negotiate a settlement or agree to submit the dispute to the

brehons. If he did not do so, he was considered an “outlaw” by the entire community; he could no longer enforce any claim of his o wn in the courts, and he was treated to the opprobrium of the entire community. 12 There were occasional “wars,” to be sure, in the thousand years of Celtic Ireland, but they were minor brawls, negligible compared to the devastating wars that racked the rest of Europe. As Professor Peden points out, “without the coercive apparatus of the State which can through taxation and conscription mobilize large amounts of arms and manpower, the Irish were unable to sustain any large scale military force in the field for any length of time. Irish wars… were pitiful brawls and cattle raids by European standards.” 13

Thus, we

have indicated that it is perfectly possible, in theory and

historically, to have efficient and courteous police, competent and learned judges, and a body of systematic and socially accepted law—and none of these things being furnished by a coercive government. Government — claiming a compulsory monopoly of protection over a geographical area, and extracting its revenues by force—can be separated from the entire field of protection. Government is no more necessary for providing vital protection service than it is necessary for providing anything else. And we have not stressed a crucial fact about government: that its compulsory monopoly over the weapons of coercion has led it, over the centuries, to

12 Professor Charles Donahue of Fordham University has maintained that the secular part of ancient Irish law was not simply haphazard tradition; that it was consciously rooted in the Stoic conception of natural law , discoverable by man’s reason. Charles Dona hue, “Early Celtic Laws” (unpublished paper, delivered at the Columbia University Semi nar in the History of Legal and Political Thought, Autumn, 1964), pp. 13ff. 1 3 Peden, “Stateless Societies,” p. 4.

The Public Sector, III: Police, Law, and the Courts 239

infinitely more butcheries and infinitely greater tyranny and oppression than any decentralized, private agencies could possibly have done. If we look at the black record of mass murder, exploitation, and tyranny levied on society by governments over the ages, we need not be loath to abandon the Leviathan State and… try freedom.

Outlaw Protectors

We have saved for the last this problem: What if police or judges and courts should be venal and biased—what if they should bias their decisions, for example, in favor of particularly wealthy clients? We have shown how a libertarian legal and judicial system could work on the purely free market, assuming honest differences of opinion—but what if one or more police or courts should become, in effect, outlaws? What then? In the first place, libertarians do not flinch from such a question. In contrast to such utopians as Marxists or left- wing anarchists (anarcho - communists or anarcho - syndicalists), libertarians do not assume that the ushering in of the purely free society of their dreams will also bring with it a new, magically transformed Libertarian Man. We do not assume that the lion will lie down with the lamb, or that no one will have criminal or fraudulent designs upon his neighbor. The “better” that people will be, of course, the better any social system will work, in particular the less work any police or courts will have to do. But no such assumption is made by libertarians. What we assert is that, given any particular degree of “goodness” or “badness” among men, the purely libertarian society will be at once the most moral and the most efficient, the least criminal and the most secure of person or property. Let us first consider the problem of the venal or crooked judge or court. What of the court which favors its own wealthy client in trouble? In the first place, any such favoritism will be highly unlikely, given the rewards and sanctions of the free market economy. The very life of the court, the very livelihood of a judge, will depend on his reputation for integrity, fair - mindedness, objectivity, and the quest for truth in every case. This is his “brand name.” Should word of any venality leak out, he will immediately lose clients and the courts will no longer ha ve customers; for even those clients who may be criminally inclined will scarcely sponsor a court

240

Libertarian Applications to Current Problems

whose decisions are no longer taken seriously by the rest of society, or who themselves may well be in jail for dishonest and fraudulent dealings. If, for exa mple, Joe Zilch is accused of a crime or breach of contract, and he goes to a “court” headed by his brother- in- law, no one, least of all other, honest courts will take this “court’s” decision seriously. It will no longer be considered a “court” in the eyes of anyone but Joe Zilch and his family. Contrast this built- in corrective mechanism to the present - day govern- ment courts. Judges are appointed or elected for long terms, up to life, and they are accorded a monopoly of decision- making in their particular area. It is almost impossible, except in cases of gross corruption, to do anything about venal decisions of judges. Their power to make and to enforce their decisions continues unchecked year after year. Their sala ries continue to be paid, furnished under coercion by the hapless taxpayer. But in the totally free society, any suspicion of a judge or court will cause their customers to melt away and their “decisions” to be ignored. This is a far more efficient system of keeping judges honest than the mechanism of government. Furthermore, the temptation for venality and bias would be far less for another reason: business firms in the free market earn their keep, not from wealthy customers, but from a mass market by consumers. Macy’s earns its income from the mass of the population, not from a few wealthy customers. The same is true of Metropolitan Life Insurance today, and the same would be true of any “Metropolitan” court system tomorrow. It would be folly indeed for the courts to risk the loss of favor by the bulk of its customers for the favors of a few wealthy clients. But contrast the present system, where judges, like all other politicians, may be beholden to wealthy contributors who finance the campaigns of their political parties. There is a myth that the “American System” provides a superb set of “checks and balances,” with the executive, the legislature, and the courts all balancing and checking one against the other, so that power cannot unduly accumulate in one set of hands. But the American “checks and balances” system is largely a fraud. For each one of these institutions is a coercive monopoly in its area, and all of them are part of one government, headed by one political party at any given time. Furthermore, at best there are only two parties, each one close to the other in ideology and personnel, often colluding, and the actual day- to- day business of government headed by a civil service bureaucracy that cannot be displaced by the voters.

The Public Sector, III: Police, Law, and the Courts 241

Contrast to these mythical checks and balances the real che cks and balances provided by the free- market economy! What keeps A&P honest is the competition, actual and potential, of Safeway, Pioneer, and countless other grocery stores. What keeps them honest is the ability of the

consumers to cut off their patronage . What would keep the free- market judges and courts honest is the lively possibility of heading down the

block or down

the

road to

another judge or court if suspicion should

descend on any particular one. What would keep them honest is the lively possibility of their customers cutting off their business. These are the real, active checks and balances of the free- market economy and the free society. The same analysis applies to the possibility of a private police force becoming outlaw, of using their coercive powers to exact tribute, set up a “protection racket” to shake down their victims, etc. Of course, such a thing could happen. But, in contrast to present - day society, there would be immediate checks and balances available; there would be other police forces who could use their weapons to band together to put down the aggressors against their clientele. If the Metropolitan Police Force should become gangsters and exact tribute, then the rest of society could flock to

the Prudential, Equitable, etc., police forces who could band together to put them down. And this contrasts vividly with the State. If a group of gangsters should capture the State apparatus, with its monopoly of coercive weapons, there is nothing at present that can stop them— short of the imme nsely difficult process of revolution. In a libertarian society there would be no need for a massive revolution to stop the depredation of gangster- States; there would be a swift turning to the honest police forces to check and put down the force that had turned bandit. And, indeed, what is the State anyway but organized banditry? What is taxation but theft on a gigantic, unchecked, scale? What is war but mass

murder on a scale impossible by private police forces?

What is

conscription but mass enslavement? Can anyone envision a private police force getting away with a tiny fraction of what States get away with, and

do habitually, year after year, century after century? There is another vital consideration that would make it almost impossi- ble for an outlaw police force to commit anything like the banditry that modern governments practice. One of the crucial factors that permits governments to do the monstrous things they habitually do is the sense of legitimacy on the part of the stupefied public. The average citizen may not like— may even strongly object to— the policies and exactions of his

242

Libertarian Applications to Current Problems

government. But he

has

been imbued with the idea—carefully

indoctrinated by centuries of governmental propaganda—that the gov- ernment is his legitimate sovereign, and that it would be wicked or mad to refuse to obey its dictates. It is this sense of legitimacy that the State’s intellectuals have fostered over the ages, aided and abetted by all the trappings of legitimacy: flags, rituals, ceremonies, awards, constitutions, etc. A bandit gang— even if all the police forces conspired together into one vast gang—could never command such legitimacy. The public would consider them purely bandits; their extortions and tributes would never be considered legitimate though onerous “taxe s,” to be paid automatically. The public would quickly resist these illegitimate demands and the bandits would be resisted and overthrown. Once the public had tasted the joys, prosperity, freedom, and efficiency of a libertarian, State- less society, it wo uld be almost impossible for a State to fasten itself upon them once

again. Once freedom has been fully enjoyed, it is no easy task to force people to give it up. But suppose— just suppose— that despite all these handicaps and obsta- cles, despite the love fo r their new- found freedom, despite the inherent checks and balances of the free market, suppose anyway that the State manages to reestablish itself. What then? Well, then, all that would have happened is that we would have a State once again. We would be no worse off than we are now, with our current State. And, as one libertarian

philosopher has put

it,

“at

least the

world

will

have

had

a glorious

holiday.” Karl Marx’s ringing promise applies far more to a libertarian society than to communism: In trying freedom, in abolishing the State, we have nothing to lose and everything to gain.

National Defense

We come now to what is usually the final argument against the libertar- ian position. Every libertarian has heard a sympathetic but critical lis tener say: “All right, I see how this system could be applied successfully to local police and courts. But how could a libertarian society defend us against the Russians?” There are, of course, several dubious assumptions implied in such a question. There is the assumption that the Russians are bent upon mili tary invasion of the United States, a doubtful assumption at best. There is the

The Public Sector, III: Police, Law, and the Courts 243

assumption that any such desire would still remain after the United States had become a purely libertarian society. This notion overlooks the lesson of history that wars result from conflicts between nation- states, each armed to the teeth, each direly suspicious of attack by the other. But a libertarian America would clearly not be a threat to anyone, not because it had no arms but because it would be dedicated to no aggression against anyone, or against any country. Being no longer a nation- state, which is

inherently threatening, there would be little chance of any country attacking us. One of the great evils of the nation- state is tha t each State is able to identify all of its subjects with itself; hence in any inter- State war, the innocent civilians, the subjects of each country, are subject to aggression from the enemy State. But in a libertar ian society there would

be no such ident ification,

and

hence

very

little

chance

of

such

a

devastating war. Suppose, for example, that our outlaw Metropolitan Police Force has initiated aggression not only against Americans but also against Mexicans. If Mexico had a government, then clearly the Mexican government would know full well that Americans in general were not implicated in the Metropolitan’s crimes, and had no symbiotic relationship with it. If the Mexican police engaged in a punitive expedition to punish the Metropolitan force, they would not be at war with Americans in general—as they would be now. In fact, it is highly likely that other American forces would join the Mexicans in putting down the aggressor. Hence, the idea of inter- State war against a libertarian country or geographical area would most likely disappear.

There is, furthermore, a grave philosophical error in the very posing of this sort of question about the Russians. When we contemplate any sort of new system, whatever it may be, we must first decide whether we want to see it brought about. In order to decide whether we want libertarianism or communism, or left- wing anarchism, or theocracy, or any other system, we must first assume that it has been established, and then consider whether the system could work, whether it could remain in existence, and just how efficient such a system would be. We have shown, I believe, that a libertarian system, once instituted, could work, be viable, and be at once far more efficient, prosperous, moral, and free than any other social

system.

But

we have

said

nothing

about

how

to get

from the present

system to the ideal; for these are two totally separate questions: the question of what is our ideal goal, and of the strategy and tactics of how to

get from the present system to that goal. The Russian question mixes these two levels of discourse. It assumes, not that libertarianism has been

244

Libertarian Applications to Current Problems

established everywhere throughout the globe, but that for some reason it has been established only in America and nowhere else. But why assume this? Why not first assume that it has been established everywhere and see whether we like it? After all, the libertarian philosophy is an eternal one, not bound to time or place. We advocate liberty for everyone, everywhere, not just in the United States. If someone agr ees that a world libertarian society, once established, is the best that he can conceive, that it would be work able, efficient, and moral, then let him become a libertarian, let him join us in accepting liberty as our ideal goal, and then join us further in the separate— and obviously difficult— task of figuring out how to bring this ideal about. If we do move on to strategy, it is obvious that the larger an area in which liberty is first established the better its chances for survival, and the better its chance to resist any violent overthrow that may be attempted. If liberty is established instantaneously throughout the world, then there will of course be no problem of “national defense.” All problems will be local police problems. If, however, only Deep Fa lls, Wyoming, becomes libertarian while the rest of America and the world remain statist, its chances for survival will be very slim. If Deep Falls, Wyoming, declares its secession from the United States government and establishes a free society, the chanc es are great that the United States— given its historical ferocity toward secessionists— would quickly invade and crush the new free society, and there is little that any Deep Falls police force could do about it. Between these two polar cases, there is an infinite continuum of degrees, and obviously, the larger the area of freedom, the better it could withstand any outside threat. The “Russian question” is therefore a matter of strategy rather than a matter of deciding on basic principles and on the goal toward which we wish to direct our efforts. But after all this is said and done, let us take up the Russian question anyway. Let us assume that the Soviet Union would really be hell- bent on attacking a libertarian population within the present boundaries of the United States (clearly, there would no longer be a United States government to form a single nation- state). In the first place, the form and quantity of defense expenditures would be decided upon by the American consumers themselves. Those Americans who favor Polaris submarines, and fear a Soviet threat, would subscribe toward the financ ing of such vessels. Those who prefer an ABM system would invest in such defensive missiles. Those who laugh at such a threat or those who are committed pacifists would not contribute to any “national” defense service at all.

The Public Sector, III: Police, Law, and the Courts 245

Different defense theories would be applied in proportion to those who agree with, and support, the various theories being offered. Given the enormous waste in all wars and defense prepara tions in a ll countries throughout history, it is certainly not beyond the bounds of reason to propose that private, voluntary defense efforts would be far more efficient than government boondoggles. Certainly these efforts would be infinitely more moral. But let us assume the worst. Let us assume that the Soviet Union at last invades and conquers the territory of America. What then? We have to realize that the Soviet Union’s difficulties will have only just begun. The main reason a conquering country can rule a defe ated country is that the latter has an existing State apparatus to transmit and enforce the victor’s orders onto a subject population. Britain, though far smaller in area and population, was able to rule India for centuries because it could transmit British orders to the ruling Indian princes, who in turn could enforce them on the subject population. But in those cases in history where the conquered had no government, the conquerors found rule over the conquered extremely difficult. When the British conque red West Africa, for example, they found it extremely difficult to govern the Ibo tribe (later to form Biafra) because that tribe was essentially libertarian, and had no ruling government of tribal chiefs to transmit orders to the natives. And perhaps the major reason it took the English centuries to conquer ancient Ireland is that the Irish had no State, and that there was therefore no ruling governmental structure to keep treaties, transmit orders, etc. It is for this reason that the English kept denouncing the “wild” and “uncivilized” Irish as “faithless,” be cause they would not keep treaties with the English conquerors. The English could never understand that, lacking any sort of State, the Irish warriors who concluded treaties with the English could only speak for themselves; they could never commit any other group of the Irish population. 14 Furthermore, the occupying Russians’ lives would be made even more difficult by the inevitable eruption of guerrilla warfare by the American population. It is surely a lesson of the twentieth century—a lesson first driven home by the successful American revolutionaries against the mighty British Empire— that no occupying force can long keep down a native population determined to resist. If the giant United States, armed

14 Peden, “Stateless Societies,” p. 3; also see Kathleen Hughes, introduction to A. Jocelyn Otway- Ruthven, A History of Medieval Ireland (New York: Barnes & Noble, 1968).

246

Libertarian Applications to Current Problems

with far greater productivity and firepower, could not succeed against a tiny and relatively unarmed Vietnamese population, how in the world could the Soviet Union succeed in keeping down the American people? No Russian occupation soldier’s life would be safe from the wrath of a resisting American populace. Guerrilla warfare has proved to be an irresistible force precisely because it stems, not from a dictatorial central government, but from the people themselves, fighting for their liberty and independe nce against a foreign State. And surely the anticipa tion of this sea of troubles, of the enormous costs and losses that would inevitably follow, would stop well in advance even a hypothetical Soviet government bent on military conquest.

Journal of Comparative Economics 35 (2007) 689–710 <a href=www.elsevier.com/locate/jce Better off stateless: Somalia before and after government collapse Peter T. Leeson George Mason University, MSN 3G4, Fairfax, VA 22030, USA Received 22 May 2007; revised 30 September 2007 Available online 10 October 2007 Leeson, Peter T. —Better off stateless: Somalia before and after government collapse Could anarchy be good for Somalia’s development? If state predation goes unchecked government may not only fail to add to social welfare, but can actually reduce welfare below its level under statelessness. Such was the case with Somalia’s government, which did more harm to its citizens than good. The gov- ernment’s collapse and subsequent emergence of statelessness opened the opportunity for Somali progress. This paper investigates the impact of anarchy on Somali development. The data suggest that while the state of this development remains low, on nearly all of 18 key indicators that allow pre- and post-stateless welfare comparisons, Somalis are better off under anarchy than they were under government. Renewed vibrancy in critical sectors of Somalia’s economy and public goods in the absence of a predatory state are responsible for this improvement. Journal of Comparative Economics 35 (4) (2007) 689–710. George Mason Univer- sity, MSN 3G4, Fairfax, VA 22030, USA.  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. JEL classification: P59; O12 Keywords: Anarchy; Somalia; Predation E-mail address: pleeson@gmu.edu . 0147-5967/$ – see front matter  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. doi:10.1016/j.jce.2007.10.001 " id="pdf-obj-73-2" src="pdf-obj-73-2.jpg">
Journal of Comparative Economics 35 (2007) 689–710 <a href=www.elsevier.com/locate/jce Better off stateless: Somalia before and after government collapse Peter T. Leeson George Mason University, MSN 3G4, Fairfax, VA 22030, USA Received 22 May 2007; revised 30 September 2007 Available online 10 October 2007 Leeson, Peter T. —Better off stateless: Somalia before and after government collapse Could anarchy be good for Somalia’s development? If state predation goes unchecked government may not only fail to add to social welfare, but can actually reduce welfare below its level under statelessness. Such was the case with Somalia’s government, which did more harm to its citizens than good. The gov- ernment’s collapse and subsequent emergence of statelessness opened the opportunity for Somali progress. This paper investigates the impact of anarchy on Somali development. The data suggest that while the state of this development remains low, on nearly all of 18 key indicators that allow pre- and post-stateless welfare comparisons, Somalis are better off under anarchy than they were under government. Renewed vibrancy in critical sectors of Somalia’s economy and public goods in the absence of a predatory state are responsible for this improvement. Journal of Comparative Economics 35 (4) (2007) 689–710. George Mason Univer- sity, MSN 3G4, Fairfax, VA 22030, USA.  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. JEL classification: P59; O12 Keywords: Anarchy; Somalia; Predation E-mail address: pleeson@gmu.edu . 0147-5967/$ – see front matter  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. doi:10.1016/j.jce.2007.10.001 " id="pdf-obj-73-4" src="pdf-obj-73-4.jpg">

Journal of Comparative Economics 35 (2007) 689–710

Journal of Comparative Economics 35 (2007) 689–710 <a href=www.elsevier.com/locate/jce Better off stateless: Somalia before and after government collapse Peter T. Leeson George Mason University, MSN 3G4, Fairfax, VA 22030, USA Received 22 May 2007; revised 30 September 2007 Available online 10 October 2007 Leeson, Peter T. —Better off stateless: Somalia before and after government collapse Could anarchy be good for Somalia’s development? If state predation goes unchecked government may not only fail to add to social welfare, but can actually reduce welfare below its level under statelessness. Such was the case with Somalia’s government, which did more harm to its citizens than good. The gov- ernment’s collapse and subsequent emergence of statelessness opened the opportunity for Somali progress. This paper investigates the impact of anarchy on Somali development. The data suggest that while the state of this development remains low, on nearly all of 18 key indicators that allow pre- and post-stateless welfare comparisons, Somalis are better off under anarchy than they were under government. Renewed vibrancy in critical sectors of Somalia’s economy and public goods in the absence of a predatory state are responsible for this improvement. Journal of Comparative Economics 35 (4) (2007) 689–710. George Mason Univer- sity, MSN 3G4, Fairfax, VA 22030, USA.  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. JEL classification: P59; O12 Keywords: Anarchy; Somalia; Predation E-mail address: pleeson@gmu.edu . 0147-5967/$ – see front matter  2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved. doi:10.1016/j.jce.2007.10.001 " id="pdf-obj-73-8" src="pdf-obj-73-8.jpg">

Better off stateless:

Somalia before and after government collapse

Peter T. Leeson

George Mason University, MSN 3G4, Fairfax, VA 22030, USA

Received 22 May 2007; revised 30 September 2007 Available online 10 October 2007

Leeson, Peter T.—Better off stateless: Somalia before and after government collapse

Could anarchy be good for Somalia’s development? If state predation goes unchecked government may not only fail to add to social welfare, but can actually reduce welfare below its level under statelessness. Such was the case with Somalia’s government, which did more harm to its citizens than good. The gov- ernment’s collapse and subsequent emergence of statelessness opened the opportunity for Somali progress. This paper investigates the impact of anarchy on Somali development. The data suggest that while the state of this development remains low, on nearly all of 18 key indicators that allow pre- and post-stateless welfare comparisons, Somalis are better off under anarchy than they were under government. Renewed vibrancy in critical sectors of Somalia’s economy and public goods in the absence of a predatory state are responsible for this improvement. Journal of Comparative Economics 35 (4) (2007) 689–710. George Mason Univer- sity, MSN 3G4, Fairfax, VA 22030, USA. 2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved.

JEL classification: P59; O12 Keywords: Anarchy; Somalia; Predation

E-mail address: pleeson@gmu.edu.

0147-5967/$ – see front matter 2007 Association for Comparative Economic Studies. Published by Elsevier Inc. All rights reserved.

  • 690 P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

[O]ppression by the government

...

has so much more baneful an effect on the springs of

national prosperity, than almost any degree of lawlessness and turbulence under free institu- tions. Nations have acquired some wealth, and made some progress in improvement in states of social union so imperfect as to border on anarchy: but no countries in which the people were exposed without limit to arbitrary exactions from the officers of government ever yet continued to have industry and wealth.

1. Introduction

John Stuart Mill (1848, pp. 882–883)

In the developed world, the relationship between state and society is fairly straightforward. Although rent-seeking, public corruption, and government abuse exist, to a large extent devel- oped economies have developed precisely because they have succeeded in overcoming these problems. While far from perfect in this respect, government in the United States, for example, does a good job of protecting citizens’ property rights and uses its monopoly on coercion to provide public goods that, at least in principle, stand to make society more productive. In the developing world, however, the relationship between government and citizens can be quite different. Here, many political rulers routinely use government to benefit themselves and their supporters at the expense of citizens. These governments are unwilling or unable to protect their citizens’ property rights, but remain strong enough to prey on society. In the extreme, they devolve into little more than organized thuggery, seizing every opportunity to extort their citizens. Ultra-dysfunctional states not only fail to provide public goods and protect citizens’ property. They are in fact the primary threat to their citizens’ property rights and security. It is common to think that most governments in world are the well-functioning variety. However, this conventional wisdom has it backwards. Well-functioning, highly-constrained gov- ernments that protect property rights and supply public goods are the exception, not the rule. According to the 2007 Failed States Index, nearly 16 percent of the world’s countries (32) have “failing states” (Foreign Policy/Fund for Peace, 2007). In them, governments are often ultra- predatory, dysfunctional, and threatening collapse. According to this index, another 49 percent of the world’s countries (97) are in “warning” mode. Although they have not yet reached the deterioration of those in “alert” mode, they are approaching it. If these measures are correct, in over half of the world, states are either critically or dangerously dysfunctional. The world’s “experiment” with government, then, has been a far more mixed one than most people think. Since dysfunctional and predatory governments are disproportionately located in the poorest countries, this raises an important question about the link between state and economic devel- opment in the developing world. Is it possible some least-developed countries could actually perform better without any government at all? Although a properly constrained government may be superior to statelessness, it may not be true that any government is superior to no government all. De Long and Shleifer (1993), for instance, find that in pre-industrial Europe, countries without unified governments performed better in some ways than those with absolutist autocracies. If a state is highly predatory and its behavior goes unchecked, government may not only fail to add to social welfare, but may actually reduce welfare below its level under anarchy. 1

  • 1 Moselle and Polak (2001) provide a theoretical model demonstrating when this is the case.

P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

691

To investigate this question I examine the case of Somalia. In several respects, Somalia is typical of many least-developed countries (LDCs). Like most other LDCs, Somalia is located in Sub-Saharan Africa. Similar to other countries in this region, Somalia was a former European colony, achieved independence, and subsequently came under the rule of a brutal and highly- predatory political regime. Somalia is quite different from other LDCs in one important respect, however. It has no government. In 1991 Somalia’s state collapsed, creating anarchy in its wake. Although, as I discuss below, there have been a handful of attempts to resurrect central government in Somalia, to date these have been unsuccessful, leaving the country effectively stateless. Somalia therefore provides an interesting natural experiment to explore the hypothesis that if government is predatory enough, anarchy may actually prove superior in terms of economic development. There has been much hand-wringing over what to do about the situation of anarchy that has characterized Somalia since 1991. Reports from international organizations commonly express fear about the “chaos” of Somalia without a state. According to the International Relations and Security Network, for example, under anarchy Somalia has had “no functioning economy.” In- stead, “clan-based warfare and anarchy have dominated” the country (Wolfe, 2005). Shortly after Somalia’s government collapsed, the United Nations was similarly “Gravely alarmed at the rapid

deterioration” of Somalia and expressed serious “concern with the situation prevailing in that country” (UN, 1992, p. 55). The popular press has tended to go even further in its condemnation

of the “internal anarchy

...

[that] has consumed Somalia for the last 15 years” (Gettleman and

Mazzetti, 2006). The view commonly presented by these observers is that Somalia “been mired in chaos since 1991” when statelessness emerged (Hassan, 2007). To be sure, this concern is not without cause. In the year following the state’s collapse, civil

war, exacerbated by severe drought, devastated the Sub-Saharan territory killing 300,000 Somalis (Prendergast, 1997). For a time it seemed that Somali statelessness would mean endless bloody conflict, starvation, and an eventual descent into total annihilation of the Somali people. Thus, conventional wisdom sees Somalia as a land of chaos, deterioration and war, and is certain that statelessness has been detrimental to Somali development. The reason for this belief is twofold. On the one hand, popular opinion sees government as universally superior to anarchy. Government is considered necessary to prevent violent conflicts like those that erupted when Somalia’s state first crumbled, which disrupt economic activity. Government is also considered critical to supplying public goods such as roads, schools, and law and order, which are important to the process of development. From this perspective it is easy to conclude that Somalia, which has no central government, must have been better off when it did. Second, there is a tendency upon observing problems in distressed regions of the world to see only on the “failure” of the current situation, ignoring the quite possibly even worse state of affairs that preceded it. 2 This is especially easy to do for Somalia, which by international standards is far behind indeed. Educational enrollment is abysmally low—a mere seven percent for combined primary, secondary and tertiary schooling. Average Somali income is less than $1000 (PPP), and preventable diseases like malaria are a genuine threat to Somalia’s inhabitants. These facts, however, say nothing about the status of Somalia before its state collapsed. Thus,

  • 2 This remains a common problem in evaluations of Russia as well. The tendency here, like with Somalia, has been to focus on the significant defects that remain without an appreciation of the fact that, however severe these troubles are, they pale in comparison to the troubles of Russia under communist rule. Russia is undoubtedly better off today than it was under socialism. On this see, Shleifer and Treisman (2005).

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forgetting Somalia’s experience under government, it is easy to imagine that nothing could be more damaging to Somali development than the current state of anarchy. This paper investigates the impact of statelessness on Somali development. I compare the state of 18 key development indicators in Somalia before and after its government collapsed. These indicators are comprehensive in covering all angles of development for which data are available pre- and post-statelessness. While it is important to avoid romanticizing Somalia, the results suggest that statelessness has substantially improved Somali development. I find that on nearly all indicators Somalia is doing significantly better under anarchy than it was under government. This improvement has been made possible by renewed vibrancy in key sectors of the economy and public goods in the absence of state predation. Due to data limitations, my analysis of Somalia stops in 2005. Since then, the situation in Somalia has changed somewhat. Most significantly, in late 2006 Somali conflict renewed when the international community-backed Transitional Federal Government (TFG) attempted to oust the Supreme Council of Islamic Courts (SCIC), which controlled the southern Somali city of Mogadishu. This conflict disrupted the relatively long-lasting period of peace that preceded it, resurrecting the violence Somalia had largely under control leading up to this. As I discuss in greater detail below, in early 2007 the TFG succeeded in taking control of Mogadishu. However, like previous attempts to reinstate government in Somalia, the TFG’s authority is extremely weak and it is not yet clear whether it will succeed in establishing a new central government in Somalia. Section 2 of this paper considers Somalia’s pre-stateless political economy. Section 3 com- pares Somalia’s welfare under government vs. anarchy. Section 4 investigates what accounts for Somalia’s improvement under statelessness. Section 5 concludes with a discussion about post- 2005 Somalia and the prospect of reestablishing central government in Somalia.

  • 2. The grabbing hand: Somalia under government

In 1960 British Somaliland and Italian Somalia gained independence from their colonizers and joined together to form the Republic of Somalia. A bloodless coup in 1969 led by Major- General Mohamed Siad Barre overthrew the democratic government that ruled Somalia since independence. Barre went on to take power, and established an oppressive military dictatorship. 3 He reigned for 21 years until 1991 when Somalia’s government collapsed and statelessness en- sued. In 1970, under the influence of the Soviet Union, Barre transformed his military dictatorship into a socialist one. Full-scale central planning pursued under the government’s policy of “scien- tific socialism” brutalized the Somali people. The government slaughtered civilians who posed threats to the government’s plans or political power, used coercive intimidation to create artificial support for its activities, and forcibly relocated others to further the political or economic ends of Barre and his cronies. “Both the urban population and nomads living in the countryside [were] subjected to summary killings, arbitrary arrest, detention in squalid conditions, torture, rape, crippling constraints on freedom of movement and expression and a pattern of psychological intimidation” (Africa Watch Committee, 1990, p. 9). The state ruthlessly suppressed free speech and controlled all forms of information reaching Somalis. Newspapers (only one was officially permitted by the government), radio, and televi-

  • 3 As is often the case in dictatorships, technically, the Somali “constitution” of 1979 guaranteed democratic elections for its “president.” In practice, however, this guarantee was worthless. The first “election” for Barre was in 1986 in which he received 99.9 percent of the votes (US Library of Congress, 2006).

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sion were fully censored and dissent in any form squelched with force. Under Somalia’s National Security Law No. 54, “gossip” became a capital offense. Twenty other basic civil freedoms in- volving speech, association and organization also carried the death penalty. The state invested aggressively in building its military. Besides weapons and troops for foreign defense, massive resources were devoted to military structures of domestic repression. Govern- ment created a secret police squad called the National Security Service and paramilitary unit called the “Victory Pioneers” for spying on and eliminating dissenters. Both had legal discretion to detain, invade, kill, and torture at the state’s behest (Africa Watch Committee, 1990). This created a twofold dire effect for development in Somalia. On the one hand, it left few resources for investment in public goods, like education, health, or transportation infrastructure. This was especially so in pastoral areas where most Somalis lived (Little, 2003, p. 15). On the other hand, Barre’s military dictatorship eliminated any vestiges of restraint on the government’s predatory power. Law No. 1 repealed the constitution and all democratic checks. There were no elections for any political positions; all were appointed by Barre. Military suppression prevented popular uprising. Even dissent through free expression was eliminated. Government was let loose to plunder and abuse citizens for the ends of political rulers. The state was notoriously corrupt and violent. Political actors and bureaucrats embezzled state funds, extorted and murdered weak portions of the population, and engaged in aggressive asset stripping of state-owned firms. As the UN Development Program characterized it, “The 21-year regime of Siyad Barre had one of the worst human rights records in Africa” (UNDP, 2001, p. 42). This is no small feat considering that during this period Africa was home to some of history’s most savage dictatorships, including the Democratic Republic of Congo’s Mobutu. In 1975 all land was nationalized along with nearly all major industries and the financial sector. This facilitated government’s ability to expropriate citizens’ property for state projects, like massive state-operated farms, and for politicos’ personal use. Unpopular minority groups, such as the Gosha, were particularly easy prey. In the 1970s and 1980s Barre expropriated Gosha- occupied land to create state-owned irrigation schemes that benefited his allies. In other cases his minions expropriated land for their private use, making Gosha serfs on their own property (Menkhaus and Craven, 1996). State control of industry in Somalia created inefficiencies like in the Soviet Union. Between 1984 and 1988, for instance, the government-owned Kismayo Meat Factory was open only three months per year. Government also owned tanneries. The “Hides and Skins Agency” paid herders less than half the market value of hides to process in these factories. These firms also utilized only a tiny fraction of their capacity. All told, capacity utilization of Somalia’s state manufacturing firms was less than 20 percent (Mubarak, 1997, p. 2028). Incentives to be productive, keep costs down, or cater to consumer demands were virtually absent. Factory managers cared only about meeting quotas. This led them to pursue wasteful activities, such as purchasing inputs worth more as raw materials than the output they produced (Little, 2003, p. 39). Some state-owned enterprises were developed purely to benefit political rulers and their friends. For instance, government created the Water Development Program to subsidize private watering holes for the livestock of Barre’s allies. In the late 1970s Barre abandoned full-blown socialism to attract aid from the IMF. However, government continued to rely on central planning. “Parastatal companies continued to receive subsidies, foreign aid was channeled through state institutions and the state remained sole arbiter in the allocation of profitable contracts. Private sector autonomy was further curtailed by political patronage, which was the easiest way to access resources controlled by the state” (UNDP, 2001, p. 140). In the 1980s there was only one bank in Somalia, state owned and operated. Government

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used it to keep afloat failing public firms and to reward political supporters. Only state enterprises or politically well-connected Somalis were able to obtain loans (Mubarak, 1997). Government also remained involved in most other important economic sectors. Livestock and pastoral-product exports have long been critical to Somalia’s economy. In the 1970s Barre nation- alized most of this trade and continued to control it throughout the 1980s. Government restricted imports and exports and introduced a bewildering array of regulations. Foreign exchange con- trols were also strict. They required exporters to exchange at least half their foreign exchange earnings at the state-set rate, which in 1988 overvalued the Somali shilling to the US$ by more than 120 percent (Little, 2003). This benefited wealthy political patrons who consumed imports but decimated Somalia’s export industry. In the 1980s government turned to inflation to finance its corrupt and bankrupt projects. Be- tween 1983 and 1990, average annual depreciation of the Somali shilling against the US$ was over 100 percent. In some years depreciation exceeded 300 percent (Little, 2003). Hyperinfla- tion destroyed the savings of Somalis who managed to accrue modest sums over time. It also

incapacitated the monetary unit as a means of economic calculation. Government’s willful mismanagement of public resources prevented the state from being self- supporting. International development agencies, eager to woo Somalia from the influences of Eastern Europe, filled the shortfall with massive inflows of foreign aid. By the mid-1980s 100 percent of Somalia’s development budget and 50 percent of its recurrent budget was funded by foreign aid (UNDP, 2001, p. 118). In 1987 more than 70 percent of the state’s total operating budget was financed this way (Mubarak, 1996). The early-1980s saw a temporary spike in government expenditures on items like education. But by the late 1980s the weight of nearly 20 years of rampant corruption, repression, and state control had reduced Somali welfare to horrifically low levels. Well prior to the government’s col- lapse the agricultural economy was in shambles, and malnutrition and starvation were common place (Samatar, 1987). In the 1980s Somalia had one of the lowest per capita caloric intakes in the world (UNDP, 2006). At the end of the decade government spent less than one percent of GDP on economic and social services, while military and administration consumed 90 percent of the state’s total recurrent expenditure (Mubarak, 1997). Government consistently used state resources to privilege members of Barre’s clan at the expense of others. “The Barre regime awarded certain client groups preferential access to arable

land and water

...

Indeed, the Somalia case is a good example of ethnic (and clan) favoritism

where private land-grabbing in the Jubba and Shebelle Valleys favored the late president’s clan, the Marehan, while alienating other groups” (Little, 2003, p. 36). In 1988, for example, Barre supported Marehan herders’ unlawful appropriation of Ogaden water points in Southern Somalia. Barre’s “ethnic favoritism” created tension between Somali clans. In the late 1980s exploited clans reacted by forming faction groups like the Somali Patriotic Movement (comprised largely of Ogaden), the Somali National Movement (comprised largely of Isaaq) and the United So- mali Congress (comprised largely of Hawiye). United against government’s predation on non- Marehans, they joined forces to oust Barre. Unfortunately, the inter-clan tensions Barre created did not immediately disappear with him. The seeds of clan conflict sewn by 20 years of “divide

and rule” 4 policy erupted into violence when government crumbled.

  • 4 The application of this terminology to Barre’s regime is from Little (2003).

P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

  • 3. The hidden hand: Somalia under anarchy

695

In 1988 civil war broke out in the northern part of the country (Somaliland), setting in motion the beginning of the end of government in Somalia. In January of 1991 a coup d’état toppled Barre’s regime, creating statelessness in its wake. 5 Tellingly, the same year anarchy replaced government, 400,000 Somali refugees in Ethiopia returned to their homes in Somalia (UNDP, 2001, p. 59). For the next two years, rival factions fought to establish power. These were the days when Somali “warlords,” such as General Hussein Aideed of Mogadishu and Ali Mohamed Mahdi, battled to solidify their bases of strength. At the same time severe drought struck the country, creating famine in its aftermath. In 1992 the UN sent troops to Somalia to quell the conflict and ease suffering, but failed to establish authority, stability or peace in the region. 6 Some fighting continued into the mid-1990s, but died down considerably since 1991. By the late 1990s peace prevailed over most of Somalia. Until 2006, when the attempted reestablishment of central government sparked new violence, conflict was isolated and sporadic, confined when it did occur to pockets of small-scale rivalry in a few areas (Menkhaus 1998, 2004; Nenova, 2004). Important to this expanding peace was expanding commerce, discussed below (Menkhaus, 2004; Nenova, 2004). Most depictions of Somalia leading up to the 2006 period grossly exaggerate the extent of Somali violence. In reality, fewer people died from armed conflict in some parts of Somalia than did in neighboring countries that have governments. In these areas security was better than it was under government (UNDP, 2001). About the same number of annual deaths in Somalia during this period were due to childbirth as were attributable to war—roughly four percent of the total (World Bank/UNDP, 2003, p. 16). And these deaths were combatants, not civilians. “Atrocities

against civilians

...

[were] almost of unheard of” (Menkhaus, 2004, p. 30). This is still too high,

but far from cataclysmic. In fact, it’s not far from the percentage of deaths due to homicide in middle-income countries such as Mexico, which in 2001 was 3.6 (WHO, 2006). In 2006 “a loose coalition of clerics, business leaders, and Islamic court militias known as the Supreme Council of Islamic Courts (SCIC)” gained increasing dominance over key areas of Somalia, including the capital, Mogadishu (CIA World Factbook, 2007). In response to this, the international community-backed Transitional Federal Government (TFG) attacked the SCIC, leading to a battle between them for power. It remains to be seen what long-run impact this conflict will have on Somali peace. But in the short run, at least, this conflict reversed the strides toward more peaceful anarchy that Somalia had largely succeeded in creating prior to the TFG- SCIC clash.

  • 5 When Somalia’s government first collapsed, clans in the northwestern part of Somalia declared this territory an independent sovereignty called the Republic of Somaliland. Somaliland continues to exist, though unrecognized by the global community. In 1998 a number of clans in neighboring eastern portions of northern Somalia also declared themselves autonomous, forming Puntland. Unlike Somaliland, Puntland does not aim at independence from Somalia, but instead sees itself as an independent territory within Somalia. Although Puntland and Somaliland (to a lesser extent) both have “governments,” and thus more formal structure than the southern part of Somalia, these “states” remain weak at best. Neither “government,” for instance, has exhibited the ability to raise significant revenue through taxation. Somaliland and Puntland also dispute territory along their border creating confusion about which entity governs what, and contributing to the stateless or quasi-stateless atmosphere in both.

  • 6 Interestingly, after the UN evacuated the country in 1995, rather than deteriorate, the Somali economy actually im- proved (Little, 2003, p. xvii).

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    • 3.1. Improved overall human development

There is no statistical office in Somalia to collect economic, demographic or other types of data that could be used for regression analyses. 7 Even before 1991, government collected almost no such information. However, the UNDP, World Bank, CIA, and World Health Organization have collected sufficient data to conduct a study that allows us to compare Somali development before and after statelessness emerged. To do this I examine all development indicators in So- malia for which data are available pre- and post-statelessness, using figures for the most recent available year in each case. 18 key development indicators allow for comparison. I consider the last five years of government preceding the emergence of statelessness (1985–1990) and the most recent five years of Somali anarchy (2000–2005) for which data are available. Before considering the results of this analysis, it is important underscore several features of the comparison. First, because there are not yet data for the period since the SCIC-TFG clash in late 2006, my comparison does not capture any change in Somali performance on these in- dicators post-the recent conflict. Second, this analysis compares Somalia under government to Somalia under anarchy circa 2000–2005, not to Somalia anarchy in the period of intense civil war immediately following government’s collapse circa 1991–1992. Of course, when state col- lapse coincides with high levels of armed conflict, economic development is not possible. Third, while highly suggestive, these data must be interpreted with caution. The correlation established here cannot establish causation. In addition to the possibility that state collapse is the reason for the improvements we observe in Somali development over this period, it is also possible that other factors may have contributed to this improvement. I will discuss what these are and their plausibility relative to the government collapse hypothesis below. Data for the pre-1991 period come from the United Nations Development Program’s (UNDP) Human Development Report-Somalia 2001 and the World Bank/UNDP’s (2003) most recent Socio-Economic Survey in Somalia. Data for the post-stateless period are from the CIA World Factbook (2006), UNDP’s (2001, 2006) Human Development Report, the World Health Or- ganization’s WHO (2004) Somalia Annual Report 2003, and the World Bank/UNDP (2003) Socio-Economic Survey in Somalia. Table 1 contains all 18 indicators and the results of the pre- and post-statelessness comparison. The data depict a country with severe problems, but one which is clearly doing better under statelessness than it was under government. Of the 18 development indicators, 14 show unam- biguous improvement under anarchy. Life expectancy is higher today than was in the last years of government’s existence; infant mortality has improved 24 percent; maternal mortality has fallen over 30 percent; infants with low birth weight has fallen more than 15 percentage points; ac- cess to health facilities has increased more than 25 percentage points; access to sanitation has risen eight percentage points; extreme poverty has plummeted nearly 20 percentage points; one year olds fully immunized for TB has grown nearly 20 percentage points, and for measles has in- creased ten; fatalities due to measles have dropped 30 percent; and the prevalence of TVs, radios, and telephones has jumped between 3 and 25 times. Per capita GDP (PPP) is lower than its 1989–1990 level, but the data overstate the size of average income in the pre-1991 period, which is likely lower than in it is today. Three sources of bias inflate pre-1991 per capita GDP as a measurement of well-being. First, firm managers in planned economies have strong incentives to over-report output to meet quotas or obtain rewards

  • 7 The “governments” in Somaliland and Puntland have been able to collect some statistics, but nothing substantial or that covers Somalia as a whole.

P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

Table 1 Key development indicators before and after statelessness

697

1985–1990 a

2000–2005

Welfare change

GDP per capita (PPP constant $) Life expectancy (years) One year olds fully immunized against measles (%) One year olds fully immunized against TB (%) Physicians (per 100,000) Infants with low birth weight (%) Infant mortality rate (per 1000) Maternal mortality rate (per 100,000) Pop. with access to water (%) Pop. with access to sanitation (%) Pop. with access to at least one health facility (%) Extreme poverty (% < $1 per day) Radios (per 1000) Telephones (per 1000) TVs (per 1000) Fatality due to measles Adult literacy rate (%) Combined n school enrollment (%)

836 b

46.0 b

30

31

3.4

16

152

1600

29

18

28

60

4.0

1.92 d

1.2

8000

24 b

12.9 b

600 c,e

48.47 c,g

40

h

50

h

4 h

0.3 l

114.89 c,g

1100 i

29

h

26

h

54.8

k

43.2

k

98.5

k

14.9

k

3.7 k

5598 j,m

19.2 j

7.5 a,f

?

Improved

Improved

Improved

Improved

Improved

Improved

Improved

Same

Improved

Improved

Improved

Improved

Improved

Improved

Improved

Worse

Worse

a UNDP (2001); b 1989–1990; c CIA World Factbook (2006); d 1987–1990, World Bank/UNDP (2003); e 2005; f 2001; g 2006; h 2004, UNDP (2006); i 2000, UNDP (2006) j 2002, WHO (2004); k 2002, World Bank/UNDP (2003); l 1999, UNDP (2001); m 2003; n Refers to primary, secondary, and tertiary gross enrollment.

(Shleifer and Treisman, 2005). Although Somalia officially abandoned socialism by 1980, the state continued to play a significant role in production until its collapse. In this environment, firm managers likely inflated reported output, leading to artificially high GDP figures. Second, under government a great deal of Somali production was military hardware that citizens did not consume. In fact, to the extent that this hardware was used to suppress the Somali population, this sizeable portion of pre-1991 GDP was actually negative value added from the perspective of citizens’ welfare. Finally, in the pre-stateless period Somalia was one of the largest per capita foreign aid recipients in the world (UNDP, 2001). In fact, “Pre-war Somalia was considered a classic case of an aid-dependent state” (UNDP, 2001, p. 118). By the mid-1980s foreign aid was 58 percent of Somali GNP (UNDP, 1998, p. 57) compared to only nine percent today (UNDP, 2001). In 1987 more than 70 percent of the state’s operating budget was financed by foreign aid (Mubarak, 1996). And before government collapsed, nearly 100 percent of Somali education was financed by foreign aid (UNDP, 2001, p. 120). This discrepancy inflates pre-1991 GDP per capita compared to per capita income today. If it were possible, accounting for fictitious production under government, the negative value added of military expenditures, and the “foreign aid gap” would likely reduce Somalia’s pre-1991 average income level below its post-1991 level. 8 The dramatic increase in post-1991 Somali con- sumption depicted in the data corroborates this fact. A substantial observed rise in consumption

8 The census information used to calculate pre-1991 per capita GDP in Somalia is also controversial (UNDP, 2001, p. 57) and, if understated, would further overstate per capita GDP under government compared to statelessness.

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without an attendant rise in per capita GDP suggests an unmeasured increase in per capita income between the pre- and post-anarchy periods not reflected in the data. Only two of the 18 development indicators in Table 1 show a clear welfare decline under stateless: adult literacy and combined gross school enrollment. Given that foreign aid was com- pletely financing education in Somalia pre-1991, it is not surprising that there has been some fall in school enrollment and literacy. This is less a statement about the Somali government’s abil- ity to generate welfare enhancing outcomes for its citizens than it is a reflection of foreign aid poured into Somali education by the international development community before government collapsed. 9 Importantly, the indicators in Table 1 also do not measure the substantial increase in personal freedoms and civil liberties enjoyed by Somalis since the emergence of anarchy. The Somali government ruthlessly suppressed free speech, censoring newspapers, radio and television. Most forms of free expression were punishable by death and foreign travel was severely restricted. Today, in contrast, Somalis are free to travel as they please (restricted only by governments of other nations) and enjoy greater freedom of expression, both privately and publicly. 20 private newspapers, 12 radio and television stations, and several Internet sites now provide information to the Somali public (Freedom House, Reporters Sans Frontieres, 2003). Satellite-based televisions enable the transmission of international news services, including CNN (Little, 2003, pp. 170– 171). Authorities in Somaliland and Puntland have attempted to interfere with media providers in their territories, but freedom of expression remains improved compared to its status under government. This constitutes an additional important, though unmeasured, increase in Somali welfare under anarchy. As a point of comparison, it is useful to consider Somalia’s development improvements from the 1985–1990 period to the 2000–2005 period relative to movements in the same development indicators in its neighboring countries, Djibouti, Ethiopia, and Kenya. Looking at these countries helps to interpret the findings in Table 1. In particular, it helps to establish if Somalia’s devel- opment improvements were the result of its predatory government’s collapse and substitution with anarchy, or if Somalia would have experienced the same improvements even if it had re- mained under government simply because ‘it was time’ for Somalia to improve. Similarly, this comparison helps to establish if, for instance, the rise of new information technology in this part of Africa is responsible for Somali improvement and would have occurred with or without gov- ernment collapse, or rather there is something unique about Somalia—namely the collapse of its predatory state—that accounts for Somalia’ progress. In Table 2, I perform this comparison for all development indicators that data permit. I calcu- late the percent improvement (+) or decline () for each indicator in each of Somalia’s neighbors between the 1985–1990 period and the 2000–2005 period. The comparisons are unavoidably rough in the sense that they do not compare the precise years from Table 1 in all cases. Fur- ther, they fail to capture the fact that Somalia’s pre-anarchy government was considerably more predatory than the governments of Djibouti, Kenya, or Ethiopia. Thus, the experiences of these countries provide imperfect points of comparison that tend to understate the difference between Somalia’s strides under anarchy and the strides it would likely have made under Barre. Never- theless, they are sufficient to address the general question I am interested in.

  • 9 Furthermore, according to one source at least, overall enrollment in Somalia may actually be higher than its peak in the 1980s (Nenova, 2004).

P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

699

Table 2 Somalia vs. its neighbors. % Improvement or decline in development indicators between 1990 and 2005

 

Djibouti

Ethiopia

Kenya

Somalia d

GDP per capita (PPP) a

+15.5

4.1

+?

Life expectancy (years) b

15.4

+9

15.6

+5.4

Adult literacy (%) c

+3.7

20

Infant mortality rate (per 1000) a

+16

+28.5

+7.4

+24.4

Pop. with access to improved water (%) c

+1.4

4.3

+35.6

0

Pop. with access to improved sanitation (%) c

+3.8

+333.3

+7.5

+44.4

Telephone mainlines (per 1000) c

+40

+28.6

+1150

Except for Somalia:

a 1990–2005, World Bank (2005) and CIA World Factbook (2006); b 1990–2006, World Bank (2005) and CIA World Factbook (2006); c 1990–2004, World Bank (2005) and UNDP (2006); d For sources and years, see notes in Table 1.

The data reject the hypothesis that Somalia would have improved equally whether it remained under government or not. Consistent with Table 1, Somalia performs worse on adult literacy compared to its neighbors between the periods. Still, on the majority of the indicators consid- ered here, Somalia improved more than its neighbors over the same period, suggesting that the collapse of government resulted in greater development improvements than would have occurred in its absence. In a number of cases, Somalia has been improving while its neighbors have been declining. Although this analysis helps to exclude some alternative factors that might be driving Somali improvement apart from state collapse, with the data that are available only a tentative conclu- sion can be drawn. Further, the comparison in Table 2 does not help to exclude other possible sources of Somalia’s improvement unrelated to anarchy. For example, the period of Somalia’s state collapse coincides with the rise of a large Somali diaspora, which supports an enormous re- mittance economy that has undoubtedly been important to Somalia’s improvement. Similarly, in 1993–1994 UNOSOM intervened in Somalia and provided large quantities of humanitarian and other resources to Somali citizens, which might also have contributed to Somalia’s improvement without government. While the importance of these factors cannot be definitively decided, there is some reason to be skeptical that they, rather than state collapse, are responsible for Somali development. For example, rather than an independent cause of Somali improvement under statelessness, the rise of Somali remittances after government’s collapse may in fact be a result of government’s collapse. In stateless Somalia remittances are handled through the hawilaad system, discussed below, a private and self-enforcing financial system for transferring remittances sent to Somalia from abroad. Under Barre’s government, however, the hawilaad system’s predecessor, the franco valuta system, which served a similar purpose, was eventually criminalized, making it more difficult to remit finances to Somalia. When the government collapsed this barrier was removed, leading to the growth of Somali remittances under anarchy. Similarly, although UNOSOM’s intervention provided critical humanitarian aid to many So- malis, its affect on the situation in Somalia was not purely positive. UNOSOM’s presence led to surges in Somali violence, both against UNOSOM and between competing factions, which feared a shift in the balance of power that UNOSOM’s presence threatened to create. Thus, in ad- dition to providing resources, which likely helped Somali development, UNOSOM also spurred additional violence, which likely inhibited Somali development.

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Another factor that complicates my analysis is Somaliland and Puntland, the two northern regions of Somalia, both of which, nominally at least, have some kind of government. Somaliland declared itself a fully independent sovereignty in 1991. Puntland, in contrast, identified itself as an independent territory within Somalia in 1998. Although Puntland and Somaliland both have “governments,” and thus more formal structure than the southern part of Somalia, these “states” remain weak at best. Neither, for example, is recognized as a state by the international community. Further, neither exhibits some of even the most basic characteristics we associate with governments. For example, the “governments” in Puntland and Somaliland do not have a monopoly on the law or its legitimate enforcement. Although some public laws and courts exist, in both regions, the legal system functions primarily on the basis of private, customary law and mechanisms of enforcement—the legal system that governs the totally stateless southern portion of Somalia—which I discuss below (van Notten, 2005). Similarly, neither Somaliland nor Puntland has proved very successful in extracting taxes from their citizens. In Puntland, government’s “[r]evenue capacity is very limited” (UN, 2006, Chapter III, p. 6); likewise, Somaliland suffers from “weak revenue collection capacity” (UN, 2006, Chapter IV, p. 3). In addition to this, similar to fully-stateless Somalia, in both Puntland and Somaliland, the private sector delivers many, if not most, public goods (UN, 2006, Chapters III, IV). Calling Puntland or Somaliland “governments,” then, is misleading. It is more appropriate to think of these as ultra-minimal states, if they are states at all. Unfortunately, there are little data that would allow for a disaggregated examination of So- mali improvement in the post-state collapse period. Nevertheless, in Table 3, I present all of the disaggregated data I could find that allow for a comparison of Puntland and Somaliland develop- ment to Somalia’s development overall to try to get some sense of how these somewhat different regions might be influencing the overall figures presented in Table 1. Only five indicators allow even partial comparison. However, what they suggest is somewhat mixed. Somaliland has substantially better access to water and sanitation than Somalia overall. On the other hand, Somaliland actually fares worse on maternal morality than Somalia overall and has about the same GDP per capita and infant mortality rate. Puntland also has significantly better access to sanitation, but does worse than Somalia overall on access to water and infant mortality. Although disaggregated data that would allow for a thorough comparison are lacking, these figures suggest that although Puntland and Somaliland may be “pulling up” Somalia overall on certain indicators, they may be “pulling down” or not really influencing Somalia overall on several others. The UNDP (2001) reports that Puntland and Somaliland are doing better than southern Somalia, which may well be the case. However, it does not seem that these regions are the exclusive locations of post-Barre progress in the country. Still, the absence of additional data renders any judgments along these lines very tentative. It is therefore important to keep in mind

Table 3

Somalia disaggregated

 
 

GDP per capita

Infant mortality

Maternal

Pop. with access

Pop. with access

($US)

rate (per 1000

mortality rate

to water (%)

to sanitation (%)

 

live births)

(per 100,000)

Somalia a

226

114.89

1100

29

26

Somaliland b

250

113

1600

45

47

Puntland c

133

25.9

41.5

a See Table 1; b UN (2006, Chapter III); c UN (2006, Chapter IV).

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that the indicators reported in Table 1 do not disaggregate the regions of Somalia, and thus reflect overall conditions that include both citizens in Puntland and Somaliland, as well as citizens in the fully-stateless, southern portion of Somalia.

  • 4. The sources of Somalia’s progress

    • 4.1. Economic advance

Much of the credit for Somalia’s improved development belongs to its economy, which has been allowed to grow in the absence of government predation. Although economic advance has been uneven, “in some areas, the local economy is thriving and is experiencing an unparalleled economic boom” (Mubarak, 1997, p. 2027). Somalia’s cross-border cattle trade with Kenya is particularly instructive of this progress. Livestock is the most important sector of the Somali economy. It constitutes an estimated 40 percent of Somalia’s GDP and 65 percent of its exports (CIA World Factbook, 2006). Examining changes in the cross-border cattle trade before and after statelessness is therefore a useful way of establishing changes in Somalia’s economy since anarchy emerged. According to data from the Kenyan Ministry of Agriculture and Livestock Development col- lected by Peter Little (2003), Somalia’s export of cattle to Kenya more than doubled between 1991 and 2000. Figure 1 provides an event study investigating the effect of statelessness on So- malia’s cross-border cattle trade. This figure examines changes in the Somali–Kenya cross-border cattle trade between 1989 and 2000. These data draw on the cattle trade at Garissa, the main Kenyan border district and a major livestock trading market in the Kenya–Somali borderlands. The dashed vertical line at

P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710 701 that the indicators reported in

Fig. 1. Cross-border cattle trade.

  • 702 P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

1991 demarcates the emergence of anarchy. Since this time the value of the cattle trade has increased 143 percent, and its volume has increased 132 percent. Between 1989 and 2000 the value and volume of the cattle trade increased 250 and 218 percent respectively. Even during the most intense period of civil war between 1991 and 1992 the cattle trade grew substantially. This growth tends to understate the true increase in cross-border cattle trade since the onset of statelessness. In 2000 severe drought struck Somalia and Kenya closed its border 10 to Somali livestock for fear of importing animals infected with Rift Valley Fever. This depressed livestock trade in the final year for which data are available, shrinking its growth for the period 1991–2000. Between 1991 and 1998, for instance, the value of cattle traded at Garissa grew 400 percent, and between 1989 and 1998 this trade grew 600 percent. In terms of volume, annual sales grew from less than 25,000 cattle in 1989 to more than 100,000 by 1998. Further, these data reflect only official cross-border cattle exports from Somalia to Kenya. They do not include the substantial cattle trade that occurs without the Kenyan government’s approval. In 1998 unofficial exports entering Kenya from the Lower Jubba region alone add an estimated 70,000 cattle to these data (Little, 2003, p. 38). The frequency of larger-scale livestock traders has also grown under statelessness. In 1987– 1988, 80 percent of livestock traders had annual sales between one and 600 (small scale). Only 20 percent had annual sales above this level (large scale). By 1998 the percentage of large-scale traders had doubled. Consider Table 4. Information about crime in stateless Somalia can also be gleaned from this sector. The cross- border livestock trade is facilitated by brokers (dilaal) who certify for buyers and sellers that traded livestock are not stolen. Dilaal incur liability if livestock they certify is illegitimate. In this capacity they act as insurance for cross-border traders. Data on brokers’ fees pre- and post- anarchy suggest that fees have not risen since government’s collapse. Between 1988 and 1998 dilaal fees remained the same (Little, 2003, p. 109). If thievery increased between 1988 and 1998 we would expect to dilaal fees to have risen. The fact that they have not suggests that, at least in the sizeable livestock sector, thievery has not increased under anarchy. In fact, dilaal fees are lower on the Somali side of the cross-border trade than they are on the Kenyan side, indicating that thievery is more problematic in Kenya, which has a government, than in Somalia. The livestock sector’s expansion is not limited to cross-border trade with Kenya. During the 1990s Somalia accounted for more than 60 percent of all livestock exports in East Africa. In the northern part of Somalia (Somaliland and Puntland) production and annual exports of sheep and goats from the major ports of Berbera and Bossaso have surpassed their pre-1991 levels (Little,

Table 4 The growth of large-scale livestock traders

Annual sales

Percentage of traders

1987–1988

1996

1998

1–300

50

17

34

301–600

30

18

26

601–900

20

5

901–1200

5

28

22

>1200

15

17

13

Notes. Data from Little (2003).

  • 10 Saudi Arabia also banned livestock exports from Somalia during this period owing to the Rift Valley Fever.

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703

2003, pp. 37–38). In 1999 these two ports alone were responsible for 95 percent of goat and 52 percent of sheep exports for all of eastern Africa (Little, 2001, p. 194). Further, Somalia’s economic improvement under statelessness is not limited to its largest eco- nomic activity. Other sectors that have grown under anarchy include service and hospitality. A large part of this progress has been in telecommunications. Local providers have joined forces with multinationals like Sprint, ITT and Telenor to provide cheap, high quality, and extensive mo- bile phone coverage (UNDP, 2001, p. 107; The Economist Anon., 2005). Transportation is also a growing service industry in Somalia. In addition to local transportation services, Somali-owned airlines provide international service for Somalis. By 1997, 14 firms operating 62 aircraft were up and running, an improvement over this industry’s status under government (Nenova, 2004). In the hospitality sector, “unprecedented” construction is taking place in Mogadishu and other major urban centers (UNDP, 2001, p. 203), facilitating the growth of new restaurants and ho- tels. “In Hargeisa, Mogadishu, and Bosasso, investments in light manufacturing have expanded, indicating local investor confidence in the economy and local security” (UNDP, 2001, p. 39). An improved monetary climate has also contributed to Somalia’s stateless economy. Infla- tion was a significant problem pre-1991 when government appealed to the printing presses to fund its corrupt activities. Skyrocketing inflation made it increasingly difficult to purchase con- sumables. It also created business uncertainty and distorted monetary calculations of economic participants. Although the monetary situation in Somalia is still problematic, under anarchy the Somali shilling (SoSh) has been more stable. The SoSh was the official currency of pre-1991 Somalia. Post-1991 there was no government to mandate its usage; however the SoSh continued to trade on the world market. Today the SoSh, along with the US$, is the basis of Somalia’s private monetary system. 11 There is no central bank or treasury in Somalia. This means that primarily old notes circulate, though in some cases discussed below private parties have printed new currency, adding to the SoSh supply. Figure 2 examines the SoSh/US$ exchange rate between 1986 and March of 2000. The first dashed line in 1991 indicates the emergence of anarchy. Under Barre’s predatory regime the exchange rate soared. Steep depreciation drove the SoSh from SoSh 110 per $1 in 1986 to SoSh 5700 per $1 by 1991. Following the coup the exchange rate fell precipitously to SoSh 4200/US$ despite the fact that Somalia was in the throws of civil war. Under statelessness, the SoSh has shown significantly greater stability. It lost significant value against the dollar twice during this period—first around 1996, and then after March of 1999. These dates, indicated by the second and third dashed lines, mark two monetary increases. The first was instigated by the Mogadishu-based warlord, Hussein Aideed, who imported new shillings he had printed abroad to fund his faction’s activities. The second was instigated by the fledgling Transitional National Government in the spring of 1999. In an attempt to establish the TNG as a formal authority, its supporters imported SoSh 30 billion they had printed in Canada. Since 2000, TNG supporters have further added to Somalia’s money supply leading to addi- tional depreciation against the dollar. Nevertheless, the average annual rate of depreciation under anarchy is still only a fraction of its size under government. In just the last four years under government (1986–1990), average annual depreciation of the SoSh was nearly 120 percent. In the first nine years of statelessness (1991–2000), average annual depreciation of the SoSh was just over six percent. The 2000 monetary injection of TNG supporters boosted the 1991–2001 average to around 14.7 percent, and more recent injections promise to depreciate the currency

  • 11 Somaliland also has its own currency, the Somaliland shilling.

  • 704 P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

704 P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710 Fig. 2. SoSh/US$ exchange rate.

Fig. 2. SoSh/US$ exchange rate.

further. 12 Still, money appears to be more stable under Somali anarchy that it was under the last years of government. The SoSh’s improved stability is also reflected by the fact that, at least until several years ago, in parts of neighboring Ethiopia the SoSh was used more extensively used than Ethiopia’s own currency (Little, 2003, p. 144). In fact, prior to the large monetary injections in Somalia in March of 1999 and then in 2000, the SoSh showed greater stability than the national currencies of both Ethiopia and Kenya. From 1996 to February 1999 the SoSh depreciated against the US$ only 12.14 percent. Between 1996 and 1999 the Kenyan shilling lost 32.55 percent against the US$ and the Ethiopian birr depreciated against the dollar 26.58 percent. 13 Somalia’s financial market has also improved under statelessness. Numerous remittance firms discussed above, called hawilaad, handle an estimated $500 million–$1 billion sent by members of the Somali diaspora to their friends and family in Somalia each year (UNDP, 2001). Haw- ilaad are instrumental in connecting Somalis with the resources they need to survive and expand their enterprises. At least one of the Mogadishu-based firms is multinational with branches in countries throughout the world (Little, 2003; UNDP, 2001). Remittance businesses are also mor- phing into private depository/lending institutions and will likely contribute to the development of a Somali banking sector. Some offer travelers checks and non-interest bearing deposits, make small loans, and perform other bank-related services (Nenova, 2004). Though still in its nascent stages, Somalia’s financial sector affords greater access to most Somalis today than it did un- der government when financial services (especially loans) went exclusively to public enterprises

  • 12 Calculated using data from Little (2003) and UNDP (2001).

  • 13 Calculated using data from IMF (2006) and Little (2003).

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and political allies (Mubarak, 1997). As a result, under anarchy, “Somalis lend and borrow an extraordinary amount of money to one another” (Menkhaus, 2004, p. 34). The financial sector is not alone to attract attention from multinational businesses. Others have also found stateless Somalia an attractive place to invest. Dole Fruit, for instance, has invested in Somalia. General Motors’ Kenya subsidiary has as well. Total Oil Company now operates in Somaliland, and the BBC has forged a formal affiliation with one of Somalia’s emergent media companies. Several international companies have expressed interest in investing in Somalia’s energy industry, and numerous fishing fleets from Europe and Asia have reached agreements for commercial fishing in Puntland (Little, 2003, pp. 166–167). The Somali economy has a long way to go, but in many ways has progressed since statelessness emerged.

  • 4.2. Improvement in public goods

Supporting the growth of the Somali economy is an improved public goods sector. Public goods remain extremely low, especially in Somalia’s rural areas. However, like Somalia’s econ- omy, they show progress under anarchy. While factions are able to “tax” Somalis traveling on roadways they control, taxes and restrictions on Somalis’ movement and trading activities are substantially lower under statelessness than they were under government. “Taxes, payable to a tentative local authority or strongman, are seldom more than 5%, security is another 5% (more in Mogadishu), and customs duties are next to nothing. There is no need to pay for licenses, or to pay to put up masts” (The Economist Anon., 2005). Further, it does not seem that Somalis are any less likely to enjoy the benefits of fees paid to militia leaders than they were when they paid considerably higher taxes to government (Little, 2003, pp. 7–9). Public goods come from a variety of sources in stateless Somalia, including the “taxes” charged by militia. Clan militias provide security to citizens in their territories, and militiamen for hire protect businesses, seaports, large markets, and trade convoys. In other cases shari’a, a form of religious law/courts discussed below, provide security by including guards in their court militia in return for payment from businessmen (UNDP, 2001, pp. 109–110). Clan leaders also work together to provide needed public goods in areas outside of Somalia’s big cities where very few exist. Law and order is provided privately by xeer, Somali customary law, which establishes rules regarding marriage, war, resource use, and social contracts between clans. It is also supported by diya, which defines rules regarding the punishment of misconduct, such as murder or theft. 14 Although some secular courts exist, shari’a courts perform an instrumental function in creating legal order. Private courts are funded by the donations of successful businessmen who benefit from the presence of this public good in urban centers. Under anarchy, dispute resolution is free and speedy by international standards (Nenova, 2004; Nenova and Harford, 2004). This constitutes an important improvement in the provision of law and order compared to before 1991. Under government, the legal system was often used as a tool for preying on Somali citizens and punishing the opposition (Africa Watch Committee, 1990; Menkhaus, 2004). “[H]arassment, arbitrary arrest and imprisonment, denial of a fair public trial, and invasion of the home were common features of the life of the Somali citizen” (Hashim, 1997, p. 90). Rampant corruption and political pressures rendered the police and judiciary useless for most Somalis. Because of the state’s collapse, private providers of law and order have been freed to step in. Somalia’s

  • 14 On the private provision of law and order see, Benson (1990, 1991, 1995).

  • 706 P.T. Leeson / Journal of Comparative Economics 35 (2007) 689–710

stateless legal system is far from perfect. The justice system is still subject to abuse and the climate in a number of areas remained insecure even before the renewed conflict in late 2006. Nevertheless, there has been improvement compared to the situation under government. “[I]n some parts of Somalia, local communities enjoy more responsive and participatory governance, and a more predictable, profitable, and safer commercial climate, than at any time in recent decades” (Menkhaus, 1998, p. 220). Education has also benefited in important ways under anarchy. There are more primary schools in Somalia today than there were in the late 1980s under government (UNDP, 2001, p. 84), and this number is growing. The number of formal schools has increased from 600 in 1990 to 1172 under statelessness (UNICEF, 2005b). There are many Koranic schools as well. These focus mostly on the Koran, but students also learn Arabic. Higher education has simi- larly benefited by statelessness. There was only one university in Somalia prior to the emergence of anarchy. Under statelessness, universities have emerged in Borama, Hargeisa, Bossaso, and Mogadishu. These universities offer subjects from computer skills to accounting. According to UNICEF, although the state of education in Somalia remains poor, there is evidence of “gaining momentum in the education sector” (UNICEF, 2005a, p. 2) and improving children’s literacy and numeracy. Somalia’s “private sector has [also] proved to be a relatively effective provider of key so- cial services, such as water or transport” (UNDP, 2001, p. 42). Transportation for freight and people connects even small villages in Somalia to major urban centers, and is relatively inexpen- sive (Nenova, 2004). A state-owned electricity provider opened in Hargeisa in 2003. However, most Somali electricity is privately provided. Water needs are also supplied by private firms. Private social insurance provides a safety net financed through remittances from abroad. These remittances average $4170 annually per household (Ahmed, 2000, p. 384). Expansive domes- tic clan-based social networks also provide social insurance. In hard times, private welfare can contribute as much as 25–60 percent of household income (UNDP, 2001, p. 68). Private health- care is also available. Although the state of medicine in Somalia remains extremely low, medical consultations are affordable ($0.50/visit) (UNDP, 2001, p. 108). Further, the percentage of So- malis with access to a medical facility has nearly doubled since 1989–1990 before statelessness

emerged. Privately-provided public goods like “education and health care services

...

and utility

companies such as electricity and water, are also providing new income generating and employ- ment opportunities” (UNDP, 2001, p. 39) that have further contributed to Somalia’s economic improvement.

  • 5. Concluding remarks

Somalia remains a country with severe problems. But it appears to have fared better under re- cent statelessness than it did under government. A comprehensive view of the data that allow pre- and post-anarchy welfare comparisons suggest that anarchy has improved Somali development in important ways. Contrary to our typical intuition, in Somalia it seems that social welfare has improved because of, rather than despite, the absence of a central state. Somalia’s government was oppressive, exploitative, and brutal. The extent of this predation created a situation in which social welfare was depressed below the level it could achieve without any government at all. The emergence of anarchy in 1991 opened up opportunities for advancement not possible before government’s collapse. In particular, economic progress and improved public goods provision in critical areas flourished in the absence of a monopolistic and corrupt state.

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Recognition of this is not to deny that Somalia could be doing much better. It clearly could. Nor is this to say that Somalia is better off stateless than it would be under any government. A constitutionally-constrained state with limited powers to do harm but strong enough to support the private sector may very well do more for Somalia than statelessness. Further, Somalia’s im- provement under anarchy does not tell us whether continual improvement is possible if Somalia remains stateless. It is possible that past some point, to enjoy further development, Somalia might require a central government capable of providing more widespread security and public goods. De Long and Shleifer (1993), for example, show that while pre-industrial European countries under “feudal anarchy” performed better in some ways than those under absolutist autocracies, countries under limited government performed better than both. But this was not the type of government that collapsed in Somalia 15 years ago. The relevant question for Somalia’s future is thus whether or not a government, were a stable one to emerge, would be more like the constrained variety we observe in the West, or more like the purely predatory variety that systematically exploited Somalis between 1969 and the emer- gence of anarchy in 1991. In the latter case, even if Somalia’s ability to improve is constrained by statelessness, Somali development would still be better served under anarchy than it would be under government. If “good government” is not one of the options in Somalia’s institutional opportunity set, anarchy may be a constrained optimum. Among the options that are available, ultra-predatory government and statelessness, statelessness may be preferable. In August of 2000, select Somali clan leaders gathered in Djibouti at the urging of the interna- tional community. At this meeting they established the Transitional National Government (TNG) in an attempt to reestablish formal government in Somalia. The TNG, while remaining in name for three years, failed to establish authority. It was crippled by a lack of popular support and an inability to raise tax revenues. The terms of the TNG expired in 2003. This gave rise in 2004 to the Transitional Federal Government (TFG), led by Abdullahi Yusuf Ahmed. The plan was for the TFG to go to Mogadishu and set up the center of the new central government. However, strong divisions within the members of the TFG initially prevented this. Instead of creating a new government, the TFG effectively fractured into two new rival faction groups that did not fundamentally differ from the “warlord”-led factions it sought to replace. In May of 2006, the TFG and the Supreme Council of Islamic Courts (SCIC), which provided the basis of Somalia’s private legal system, entered a conflict over control of Mogadishu and other key areas in Somalia. With Ethiopia’s assistance, in early 2007 the TFG succeeded in taking control of the capital city where it now resides. The SCIC continues to mount small-scale resistance, but for the moment at least, is not in a position to regain control of Mogadishu. The renewed violence this most recent attempt to reestablish formal government in Somalia created has undermined the relative peace and stability that preceded it in the earlier period of Somali anarchy. Despite the TFG’s victory over the SCIC and movement to Mogadishu, Somali statelessness persists. The TFG enjoys the support of the international community, but like the TNG, lacks the domestic support needed to establish genuine authority. Surprisingly, it seems that Somalia’s pri- vate sector and has not totally collapsed in the face of the new violence. As one Mogadishu-based electronics store owner commented, for example, even “After the fighting between the Islamists [the SCIC-backed militia] and the warlords [the TFG-backed militias], people are still buying computers. The security [situation] is very, very good” (quoted in Tek, 2006, p. 31). Further, while it is certain that the renewed conflict has been harmful to the progress Somali achieved leading up to this, what little updated data we have on Somalia suggests that this conflict has not totally reversed the strides toward improvement Somalia has made since 1991. The only two de-

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velopment indicators from Table 1 available for 2007, infant mortality and life expectancy, both show improvement not only over their levels under Somali government, but also over their levels in 2006. The improvement has been minimal in only one year, but is present nevertheless. Infant mortality has fallen from 114.89 to 113.08 and life expectancy has risen from 48.47 to 48.84 (CIA World Factbook, 2007). Whether or not this improvement is part of a larger trend remains unclear. However, it provides at least some reason to be less pessimistic about the possible impact that recent Somali fighting has had on the progress Somalia achieved under anarchy before this fighting. Harold Demsetz (1969) famously cautioned economists to avoid committing the “nirvana fallacy,” which compares an imperfect reality with a hypothetical ideal state. Instead we should