So you spend a lot of time debating a friend, answering all his questions on private law and rebutting certain myths about law. You are able to connect most problems in our society with lack of order because of monopolized law (not despite it). Once he has thoroughly exhausted all his arguments and you are sure the discussion is coming to an end he asks a near impossible question which nearly all libertarians dread: So what is the solution?
The failure to answer this question is unfortunately a result of short-sightedness. Libertarians must ask themselves that if private law is a much better way of providing protection then why does it not exist today? A quick answer to that question would be “because of the state”. State, as Hoppe defines, is a territorial monopoly of ultimate decision-making. State is the ultimate arbiter of every conflict in a given area, even the conflicts involving itself. If agents of the state come to collect taxes or restrict trade in anyway, this conflict between the agents and their would be victims is dealt by the state in the standard form of law. State considers the victims of this conflict as the perpetrators and vice-versa. Victims of taxation who are able to escape are called tax cheats and black market traders are called smugglers. The state also contends that no one has the right to overturn this classification and anyone who tries to protect these victims would be treated as perpetrators themselves.
Something feels off here. Why is it that the state is able to get away with such actions? “The chief task of the rulers is always to secure the active or resigned acceptance of the majority of the citizens”, says Rothbard in Anatomy of the State. Different states have found different ways to justify their rule. Some in the past have used God and Religion. States also provide privileges and power to intellectuals who are able to justify the rule of the state. States today survive due to a mixture of intellectuals, economists, religion, culture etc. Today the state creeps into religion and culture to make it seem legit and props up the intellectuals to counter people who wise up against statist culture. In United States, for instance, religion and culture (which includes patriotism) is used to control the “right”. And intellectuals and economists are used to control the progressives. (A far better explanation of how state maintains itself is given in Anatomy of the State)
Why does Private law not exist almost anywhere? Well because there isn’t a sizeable demand for it. We don’t have a throng of people demanding freedom, we have a small minority. Majority of people accept the state’s rule even though they may disagree with some of its actions. Talk to anyone outside the libertarian circles and you will find that smugglers are considered evil, tax cheats are considered to be a barrier to nation’s development and black markets are considered to be the reason why we have high prices. And what irrefutable logic is behind these assertions? Nothing. Majority of the population really believe these statements to be true because they have been spoon fed this lie since their birth. The lie that laws are made to create order in society and therefore they exist for a reason. Even a smuggler probably considers himself to be a criminal of low morals having never read something like Walter Block’s Defending the undefendable. So an average citizen thinks there must be a reason why farmers should absolutely not be allowed to sell their produce on the black market disobeying the price caps. Just because some laws, like laws against murder, are made for a justifiable reason they extrapolate that others laws must have economic and scientific reasons.
There is however a demand for order in society. Almost everyone wants to live in a well ordered society with reasonable amount of freedom for everyone. Agents of the state claim that their monopoly provides that order. That if anyone other than themselves are allowed to “serve and protect” then there would be chaos. State, the idea of monopoly governance, is therefore a Mengerian “imaginary good”. It claims to satisfy a demand for order but it really doesn’t. (Just like fake medicines and love potions do not satisfy their respective demands for health and love) Agents of state solve crimes and appear to create order, but they do so either because they are paid or because of a sense of duty. They are not enabled in this regard by any form of state monopoly. They are however enabled by state monopoly and its laws to exercise their power towards corporatism, protectionism and rent seeking.
The number of people who recognize that it is Private law which has the capability to satisfy the demand for order, is a small minority but their numbers are growing. These individuals are starting to have a varying degree of influence on both reformists and revolutionaries. Entrepreneurial activities, even in the black market, do not exist just because it is theoretically possible. It might be theoretically possible for entrepreneurs to provide protection and arbitration services but they will not be able to provide them profitably and sustainably if their non-aggressive actions are considered to be illegitimate by majority of its citizens who are influenced by state’s decree. If majority of citizens consider protection to be a ‘right’ that is bestowed upon them (through taxation of course) by the state, then they aren’t going to accept any paid service that actually provides them protection (rather than appearing to provide it). Libertarians chief task is therefore to create a demand for such services and to instigate entrepreneurs (or become one themselves) to provide such services.
As an analogy: If we were living in a world dominated by fake medicines and treatments for diseases (as we were in the past), principled medicine practitioners would be spreading information about the dangers of these fake medicines and at the same time they would be instigating entrepreneurs (or becoming one themselves) to produce effective medicines. Even under the threat of “fake medicine” mafia.
Libertarians are therefore creating a market for dissent. They do this by criticizing policies and actions by the state and show the economic harm the state does. They help unravel the political lies and fake promises and expose the demagoguery of the ruling class. They explain how different services monopolized by the state can be provided by entrepreneurial actions of fellow citizens. I started with the question “So what is the solution?”. I do not know what the path to a free society would be like, but I do know that creating a demand for freedom is the first step. Libertarians don’t have to convince everyone of the viability of private law. They have to convince just enough people to create a demand in the market for it and influence the entrepreneurs capable of providing a supply. The debate, which ended with the dreaded question, is part of that process.