Carmen Pavel has recently provided an extremely illuminating analysis of the limits of anarchic legal orders and, by extension, current arrangements for international law.Footnote 1 In the process, she poses a significant challenge to defenders of market anarchism. In particular, she argues for the existence of a “structural” flaw in anarchist legal regimes that state-centered legal regimes are said to be without. Pavel’s analysis is commendable, both for its engagement with anarchist legal theory and for its insights into the contemporary international legal order. By getting to the heart of foundational issues surrounding consent, legitimacy, and enforcement, Pavel provides much-needed clarity in a fundamental normative debate. However, I suggest in this paper that market anarchists have stronger responses to some of Pavel’s arguments than her analysis acknowledges. More specifically, I reconstruct the market anarchist position to show how it can accommodate Pavel’s central claim that “legal systems, state-based or not, must have a strong nonconsensual, coercive element.”Footnote 2 After elucidating the market anarchist position, I will, following Pavel, raise some questions as to what the insights of market anarchy might offer to theorists of international legal order.
Pavel engages with anarchist theory in a sympathetic and nuanced manner. She explicitly acknowledges the importance of “comparative institutional analysis” and clarifies that her argument does not warrant an “all-things-considered” rejection of anarchism. Instead, she persuasively argues that “it is important to understand whether legal systems under anarchism fall short of essential rule-of-law ideals, so that comparative institutional analysis aimed at reform is guided by an accurate appreciation of their strengths and weaknesses.”Footnote 3 I am in full agreement with this idea, and the following argument is written in the same spirit. Though I come to different conclusions than Pavel, I think her overall approach is worthy of emulation.
I. Anarchy and Consent
Pavel’s analysis focuses on the difficulties encountered in aspirationally “consensual” legal orders. She suggests that anarchism, to the extent that it seeks to make participation in legal regimes fully consensual, contains a structural flaw that renders its rule-of-law protections unreliable. The fundamental conclusion of the analysis is that effective legal order requires some form of “non-consensual coercive authority” in order to function. Anarchism, in which consent is absolutely foundational, simply cannot accommodate this. “To provide justice would require imposing on wrongdoers laws and institutions whose jurisdiction they have not agreed to, thus violating a core requirement of consensual anarchism, namely, that law only applies with individual consent.”Footnote 4
The basis for this claim is straightforward. Under market anarchism, individuals choose protection agencies and legal regimes voluntarily. Pavel analogizes this situation to that of international law, in which sovereign nations voluntarily bind themselves to treaties. “International law is instructive as an anarchic legal system because it shows the ways in which consent can undermine the rule of law: consent to rules can be divorced from consent to interpretive and adjudication mechanisms, thus insulating legal subjects from accountability for wrongs, even when the rules are widely adopted.”Footnote 5 If compliance with a law is voluntary, there is nothing to stop actors from withdrawing from a given agreement whenever complying runs counter to their interests. Without a mechanism for nonconsensual enforcement, compliance becomes voluntary and thus unreliable. As is clearly seen in the international arena, arrangements that rely upon voluntary compliance are not particularly robust and certainly do not qualify as realizing an order in which “equality under the law” prevails.
While the situation Pavel describes is surely present in the international arena (an issue to which we will return below), the parallel drawn by Pavel between this and market anarchy is somewhat inexact. This is, in part, because anarchist legal theorists endorse the kind of nonconsensual enforcement on whose necessity Pavel insists. To anticipate: market anarchist theorists do not imagine a world in which compliance with the law is purely voluntary. Rather, they envision a world in which there is no monopoly on judicial enforcement and thus no single entity to which it is entrusted. The contention is not that all legal compliance must be voluntary, but that no single entity should have a unique authority to impose and enforce the law.
This insight has far-reaching implications for the analysis of Pavel’s argument. Her claim that there is a unique “structural” flaw in anarchist systems turns on her identification of anarchist arrangements with consensual enforcement.Footnote 6 This is particularly important with respect to Pavel’s account, because she is explicit about the need to avoid the “nirvana fallacy” and grounds her claims in comparative institutional analysis. Even when making her strongest claims against anarchist arrangements, she grants that they are “open to conceptual and empirical refutation.” Thus, if anarchist arrangements do provide compulsory enforcement mechanisms (as I will argue below), the structural argument does not succeed. And this leaves us with a much more balanced comparative institutional situation: the relevant normative question will simply be which sets of institutions, anarchist or otherwise, are most likely to result in the kinds of outcomes that we deem desirable in terms of the provision of legal order. Following Pavel, I do not claim to present an all-things-considered defense of the superiority of anarchist arrangements. But I do hope to show that there are good reasons, so far inadequately considered in the literature, for thinking that anarchism might do better than available alternatives.
II. Covenants and the Sword
To see how market anarchist theorists combine an emphasis on consent with the reality of nonconsensual enforcement, it is helpful to start from the beginning. As Pavel notes, a key anarchist value is autonomy. The autonomy of each individual, however, must obviously be limited by the autonomy of others. Market anarchists differ in the ways in which they construe this reality. There are, broadly speaking, normative and empirical versions of the idea (roughly paralleling the Lockean and Hobbesian conceptions of the state of natureFootnote 7). In the moralized approach, natural rights entail natural duties. Liberty, in Locke’s terms, is not “license.” Each is entitled only to as much liberty as may be consistently had by all, and each one’s liberty is thus constrained by the rights of others. Autonomy, in philosophical terms, must be compossible. In the Hobbesian approach, the limitations to autonomy are more practical. Each can do whatever she is able to do. For Hobbes, it is simply an empirical fact that each person’s liberty is constrained by the existence of others.
On the natural rights view, a moral limitation is built into the notion of autonomy from the beginning. The freedom to which I have a right must be compatible with an equal freedom for everyone else. This implies clear limitations to the range of actions I can permissibly take. This means, plainly, that my obligations to respect the rights of others are independent of my consent to them. This fact has an important corollary: my right to enforce the law of nature and to resist attempts to violate my rights.Footnote 8 On this view, there is some basic set of rights that each person must have, and those rights must be mutually consistent. The “law of equal freedom” here emerges from fundamental deontological considerations. This means, again following Locke, that everyone has an equal right to enforce the law of nature (i.e., to defend themselves against rights-violations). Since all people have equal “jurisdiction,” the enforcement of the law of nature is naturally placed equally in the hands of each.
In a non-Lockean scenario, the limitations of autonomy in the “state of nature” are simply empirical facts. If all of us can simply do whatever we want, this amounts to the sort of “might makes right” scenario familiar from Hobbes: a life that is nasty, brutish, and short. From this perspective, the only limitations on the “autonomy” of each individual are given by the power of others, either alone or in concert, to resist that agent’s will. However, anarchists working in this vein suggest that agreements guaranteeing mutual autonomy will tend to emerge amongst egoistic actors for reasons of self-interest.Footnote 9 Anarchist Benjamin Tucker (in his egoist phase) stated a version of this position as follows:
Man’s only right over the land is his might over it. If his neighbor is mightier than he and takes the land from him, then the land is his neighbor’s until the latter is dispossessed in turn by one mightier still. But while the danger of such dispossession continues there is no society, no security, no comfort. Hence men contract. They agree upon certain conditions of land ownership….Footnote 10
What matters for our purposes is that, in either scenario, nonconsensual enforcement of law is present from the beginning. For Hobbesians, anyone can do anything they have the power to do, which clearly includes defending themselves against aggression. For Lockeans, whose state of nature is moralized, equality of jurisdiction means that everyone may legitimately defend their own rights and aid others in the defense of theirs. In either case, then, equality of liberty is consistent with—indeed, demands—unilateral enforcement of natural law (understood primarily in terms of self-defense).
Beginning from the conviction that anyone has a right to defend her rights from violation, anarchist theorists ask what sorts of institutions people in such circumstances would voluntarily develop. Here, dissenting from the social contract theorists, they deny that the establishment of a sovereign state is a solution that would be voluntarily adopted. The many “inconveniences” which Locke describes in the state of nature do indeed need to be addressed. But market anarchists argue that, here as elsewhere, the creation of a coercive monopoly for providing a desired service is not likely to result in its most satisfactory provision. Market anarchists generally prefer consensual institutions of legal enforcement, which implies the existence of a variety of competing providers of legal protection. The crucial difference between these and a state is that such agencies do not enjoy any special legal status. They have no legal monopoly on violence in any jurisdiction.Footnote 11
It is clear that this complicates Pavel’s account of the role of consent in anarchist theory. She argues that because I can always withdraw my consent from a legal order, reliable enforcement is impossible. But this is not the situation market anarchists envision. If I have consented to a certain legal system (e.g., by means of a contract with my protection agency), it is true that I can always terminate this agreement. What I thereby terminate is the delegation to them of the task of protecting my rights. If I withdraw my consent, they will cease to defend me under the chosen set of laws and in the agreed-upon courts. If an extant court convicts me of a crime, however, the protection agency hired by my legal adversary (or my legal adversary herself) will proceed to enforce the judgment. Contracting with a protection agency (and consenting to their legal system or that of one of their preferred courts) is first and foremost a means of self-protection (it is also, arguably, a means of signaling that I intend to behave in law-abiding ways). Withdrawing my consent from my own protection service simply subjects me to the chosen enforcement system of my legal adversary. I cannot withdraw consent from legal enforcement. I can only withdraw consent from legal defense.
To see the concrete implications of this, consider a case in which my laptop is stolen in a market anarchist society. I will seek the help of my protection agency, while the thief (if they are hoping to deny culpability) will seek the help of theirs. (For reasons detailed below, there are good reasons to think that agencies will have prior agreements with one another regarding which courts they use to resolve disputes between their clients.) If the court finds in my favor, my protection agency will pursue the recovery of the laptop. The thief’s protection agency will not resist this repossession, because the verdict has been rendered in an accepted court. Note that, under these conditions, the thief who now chooses to withdraw their consent from the process is in the same situation as the thief whose consent is ongoing. Both face the exact same circumstances, namely that my protection agency is going to reclaim my property and no alternative agency is going to stand in their way. The convicted thief could try to resist the judgment with individual force, of course, but this is a possibility that no conceivable legal regime can foreclose.Footnote 12
Pavel is surely correct in arguing that no legal order can rest solely on consensus (unless we presume, highly implausibly, that all parties to legal disputes will always voluntarily comply with legal judgments). But market anarchists do not dispute this. When it comes to the provision of legal order, the anarchist desideratum is that such order be maximally consensual (i.e., as consensual as it is possible to make it). The distinctive feature of anarchism is its claim that robust, nonconsensual enforcement is attainable without universal subordination to a single, sovereign entity authorized to carry it out. Anarchists thus embrace the idea that “all disputes should be settled by neutral third parties” while rejecting the claim that “all disputes should be settled by the same neutral third party.”Footnote 13 The market anarchist claim is that law (including, when necessary, its nonconsensual enforcement) can be most effectively provided in a polycentric manner, with no need for a sovereign, final authority. Legal order will be maximally consensual, on this view, when no one actor has a monopoly on legal provision, adjudication, or enforcement.
III. Private Protection and the Rule of Law
This observation leads directly to another core concern of Pavel’s argument: the rule of law. The argument about the need for nonconsensual enforcement is part of a broader argument about possibilities for securing rule-of-law protections. In particular, Pavel focuses on the desiderata of “(1) generality, which requires that laws be applied equally and that no one is above the law, and (7) easy access to courts, which requires that resort to justice is accessible to those who have been wronged through a court system designed to facilitate speedy and equitable resolution of complaints.”Footnote 14 Her claim is that an anarchist legal order will likely fall short of these ideals.
To address this issue, it is useful to extend the observation above about the differences between anarchist legal institutions and states. As the previous discussion highlighted, the issue turns primarily on the presence or absence of a monopoly on legal enforcement (or, in Weberian terminology, on the “legitimate use of force”). This means that employees of protection agencies (from enforcement officers to judges) have no special rights that other individuals lack; whatever a protection agency or court can do can also in principle be done by an ordinary individual. Such agencies “claim no rights over non-clients other than the right to defend their clients against coercion—the same right every individual has. They do nothing that a private individual cannot do.”Footnote 15 On this view, I hire a protection agency as I might hire a building contractor: as someone specializing in performing a task that, in principle, I could carry out myself. If I want to forgo the services of a protection agency, this is also my right. If I want to band together with friends to form a voluntary protection agency on the principle of mutual aid, this is also acceptable. In this foundational sense, “equality before the law” is presupposed by anarchism; everyone has an equal right to defend themselves against rights violations and to seek restitution if they occur.
Consider in this light Pavel’s claims about the “generality” condition of the rule of law, which requires that “no one is above the law.”Footnote 16 Admittedly, Pavel advances several good reasons to be worried about the capacity of stateless orders to achieve this goal. Yet, from an anarchist perspective, there are even better reasons to doubt that a state could meet this requirement. This is because the state and (at least some of) its agents are themselves above the law in contemporary societies. As Hobbes insisted, a sovereign enforcer of the law cannot be made subject to the law. The state and its agents, precisely because of their monopoly on judicial enforcement, may do many things that no private individual is permitted to do. To an anarchist, this constitutes a serious structural flaw in such arrangements. In contrast, the anarchist seeks the development of a system of legal adjudication in which no one (including the courts and their officers) has such special status. The conviction here is that ongoing equality of jurisdiction is the best possible guarantee of even approximately equal access to justice.
This also helps respond to Pavel’s worry that under market anarchism, “individuals can hope to have access to justice only when disputes arise between them and other members of the same private security company that also offers complex legal adjudication and enforcement for members.”Footnote 17 Part of this argument has to do with the issue of consent addressed above. But there is a further concern brought out by this element of the argument. Pavel worries that rule of law protections cannot exist when people can patronize different security firms and different legal systems. On this view, a single comprehensive system (imposed and monitored by a sovereign authority) would seem to be the only way of securing the desired equality.
There is, admittedly, much uncertainty attending the development of law in such situations. Since, by definition, no sovereign authority can dictate what the law must be, there is a strong possibility that a diversity of legal codes would arise. Yet (as will be explored further below), market anarchists offer several plausible suggestions as to why we can expect consensual legal systems to converge on basic shared norms. It is argued by David Friedman, for instance, that “utilitarian” and “libertarian” considerations will largely (though not entirely) overlap under competitive conditions.Footnote 18 This is, in essence, because people having to pay for legal protection will be incentivized to focus on just that: protection. Much of today’s criminal law would simply not exist under anarchism, because attempting to impose one’s preferences on others and control their nonaggressive behaviors would be extremely costly. (The state, given that its revenues are raised largely from compulsory taxation, can pass the laws it prefers without much consideration of their costs in this respect.)
A similar logic applies to the issue of whether firms will make arrangements for arbitration with one another. It is hard to see why a firm would offer legal protection without insisting on some system of arbitration. Doing so would mean agreeing to protect one’s clients under any conditions, regardless of whether they had committed crimes. A protection agency which made no provision for legal arbitration of disputes would simply be a private army, willing to defend its clients under any conditions. It is difficult to imagine how such a firm could stay in business (unless it overpowered all other firms, at which point it would become a state—albeit not a democratic one). It would constantly be resorting to armed conflict with other protection agencies, which would surely be costly. While it is possible that private armies (or organized criminal gangs) might arise and refuse to comply with the law, this is a problem that plagues statist legal systems as well.
This is a fundamental issue that merits further discussion. Pavel disputes the market anarchist view that all protection agencies will make use of arbitration, saying that this “cannot be the case.” Her argument is that, in a free market, firms will offer whatever services clients prefer. Since people have heterogeneous preferences, there is no reason to expect convergence on a particular bundle of legal goods. In an abstract sense, this is certainly correct. But what follows from this?
Roderick Long observes, in response to this line of argument, that it is equally true that nothing stops a firm in today’s marketplace from offering a triangular credit card.Footnote 19 If I claim that credit cards offered by today’s banks will be rectangular, can someone object that this “cannot be correct”? “Cannot” seems too strong here. While it is not conceptually impossible that a triangular credit card could be offered (as firms can offer whichever products they wish), we have good reason to expect that any firm attempting to market such a product would quickly fail. It is simply incompatible with the current financial infrastructure. The upshot of this admittedly simplistic thought experiment is that claims about the sorts of firms or products one expects to emerge on the market are not completely arbitrary. Even where no single actor has the authority to dictate the kinds of institutions or products that will emerge, we can sometimes make relatively confident judgments about the types of institutions and products that will endure under competitive conditions.
This gets to the heart of much disagreement between market anarchist and statist perspectives. Here anarchists identify what they see as a persistent error in statist legal arguments: the belief that something is most reliably or securely achieved when some particular authority is responsible for bringing it about. The anarchist view regards such a belief as a pervasive bias that subtly shapes our thinking on many issues.Footnote 20 Statist views suggest that a problem is only reliably solved if one can point to a particular agent or agency responsible for solving it. On this perspective, whether any institution is officially responsible for providing a good or service takes precedence, analytically, over whether this good or service is actually provided. This clearly begs the question against anarchist positions.Footnote 21
Though Pavel is admirably balanced in her argument as a whole, a remnant of this bias can be detected in her discussion of the rule of law. Consider, again, her claim regarding the uniquely “structural” flaw in anarchist legal orders. The claim is first made in the following way: “[consensual legal systems] all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs, and that to the extent that they do, they cease to function as anarchist legal systems.”Footnote 22 The “structural” nature of the problem is elaborated in another passage, which argues that there are “similar structural problems in both [anarchy and international law], namely, the separation of rule-making from rule adjudication and enforcement.”Footnote 23 The claim is, in essence, that rule of law protections require a single institution with coercive power that combines both rule-making and law-enforcement. Any system lacking this feature has a flaw that is “structural” in nature.
Anarchist theorists have two ready responses here. First, as noted above, they will insist that monopolistic regimes clearly possess their own foundational flaw, which is every bit as structural: namely, that whatever institution is tasked with such law-making and enforcement is itself above the law in ways that inevitably undermine equality. Second, an anarchist theorist will want to claim that the absence of a particular institution with a monopoly on rule-making and enforcement does not, in and of itself, help us to know whether such rule-making and enforcement will occur. The anarchist view requires a kind of paradigm shift, in which an entire ecosystem of polycentric institutions is the relevant point of comparison to a statist regime.
Consider, in this light, the following passage in which Pavel discusses the problems with private enforcement of law: “Rather, private judgments could be: (1) wrong on the facts, (2) biased/self-serving, or (3) illegitimate in the eyes of others and subject to retaliation/challenge.” She immediately adds: “This does not mean that institutionalized nonconsensual enforcement is flawless, but that private action to enforce the law can predictably have these undesirable features.”Footnote 24 From an anarchist perspective, the reply is clear: monopolistic enforcement itself “predictably” exhibits the undesired features associated with unaccountable sovereign power. Why, the anarchist asks, should we think that the predictable worries about stateless institutions are more troubling than the predictable worries about monopolistic authority? Why claim that anarchism has severe structural defects whereas monopolistic enforcement has the comparatively minor drawback of being “not flawless”?
The same issue arises again in the conclusion of Pavel’s article. Offering an admirably balanced account that aims to avoid the “nirvana fallacy,” she frankly acknowledges that states often fail to live up to their commitments in providing equal protection.Footnote 25 Yet she maintains that there is a key difference between this all-too-common failure and that which might exist under anarchism. The argument relies on the claim that the problems with anarchy are “structural,” whereas those present in states are not. Again, the claim that anarchy’s failings are uniquely structural is grounded in the conviction that anarchism lacks possibilities of nonconsensual enforcement. I hope to have shown that this is not true of market anarchist regimes. If so, then they could meet the requirements Pavel outlines, especially given her concession that the relevant nonconsensual enforcement structure “could be in principle polycentric.”Footnote 26
Even if this is granted, however, Pavel presents another argument in favor of statist approaches. The superiority of states (despite their acknowledged empirical failings) comes from the fact that they can “in principle” rectify their shortcomings. She goes further in claiming that “real shortcomings of legal systems within states can be addressed and have been addressed.” Here, the anarchist will want to know why such improvements should not also be expected under anarchist regimes. Pavel’s answer is clear: “the structural challenges of consent-based legal systems show that rule-of-law ideals are not likely to be realized under anarchism, unless they are the product of deliberate design.”Footnote 27 Here again, I suggest, we find the statist bias exerting its influence.
How so? This claim is perhaps best illustrated by considering an issue that, while analogous, does not directly involve anarchism: the market-oriented critique of central planning. Hayek, for example, suggested that the appeal of central planning comes in part from the idea that it makes imaginable an economic order in which resources are fairly divided amongst all people in line with some kind of rational plan. The “anarchy” of the market appears quite unsatisfactory in comparison. Central planning seems to hold out the possibility of achieving something that a market economy cannot even claim to attempt. The market, so considered, has a “structural flaw.” Central planning, even if imperfect, at least has the potential to realize the goal of universal economic justice.
For critics of state planning, however, this way of thinking is mistaken. We should evaluate economic arrangements on the basis of their always-imperfect ability to provide for the material needs of their participants. If we can point to inherent flaws (such as knowledge problems and incentive problems) in centralized planning institutions that will predictably lead to poor economic performance, then we have reason to endorse a market economy. While decentralized economic coordination cannot attempt to realize (nor even to formulate) a definite economic plan, it may nevertheless come closer to approximating the desiderata of economic planning. The paradoxical claim is that a deliberately designed institution explicitly aiming at the goal of rational economic production will do worse at achieving it than a polycentric set of institutions with no central authority and no explicit plan.Footnote 28
Market anarchists apply similar considerations to the provision of law. They argue that there are predictable dynamics associated with market competition, and that the structure of incentives that would emerge under anarchy allows us to specify with a reasonable degree of confidence which types of arrangements would prove enduring. On the market anarchist view, the appropriate comparison is between the results of the polycentric system as a whole and the results produced by a monopolistic institution. We should not, on this view, be misled by the absence of a single responsible actor into thinking that a task is being neglected (“Under capitalism, who will be in charge of making the shoes?”, as Long (op. cit.) jokingly asks). Comparative institutional analysis requires comparing the predictable consequences of competing systems, regardless of what authority they may claim.
From this perspective, the observation that no single institution is tasked with the provision and enforcement of law is not sufficient to demonstrate the existence of a uniquely structural flaw in the anarchist system. Likewise, the observation that no single authority is dictating the sorts of protection agencies that can be established is not sufficient to demonstrate that oppressive violence and vigilantism will be widespread. Market anarchists have numerous arguments regarding the kinds of institutions that would proliferate and survive under these conditions. To illustrate, let us return to the market anarchist argument for the existence of arbitration agreements amongst competing protection agencies.
As noted, market anarchists have predicted that protection agencies would enter into arbitration agreements with other agencies, such that disputes between them could be handled in court should they arise. Pavel argues, correctly, that there is no one to stop an agency from rejecting this strategy; they may choose to go it alone and refuse arbitration. The important question, from the anarchist perspective, is whether such firms would endure. There are several reasons to doubt it. First and foremost, as noted above, violence is extremely costly, even in strictly monetary terms. A firm that refused arbitration would have to regularly engage in violent conflict, and this would be extremely expensive.
While it is conceivable that extraordinarily wealthy people (if such existed under market anarchy) might be willing to pay for the “luxury” of unilateral enforcement, they too would face countervailing pressures. The reason is straightforward; it is highly likely that the clients of any such “agency” would be ostracized from ordinary society. Sensible people would refuse to enter into contracts with clients of such a firm, who would be signaling in advance their unwillingness to cooperate peacefully. Clients of such security agencies would thus suffer economically (and so be incentivized to associate with a different firm). While this prediction could be wrong, it has a prime facie plausibility. Such agencies (essentially private armies or criminal gangs) are certainly imaginable in anarchist societies (as they are, regrettably, in statist societies).Footnote 29 But this does not mean that they are likely to be pervasive or dominant institutions. The (correct) theoretical observation that anyone can set up a protection agency that refuses arbitration is not inherently threatening to the anarchist claim, unless it can also be shown that there is good reason to expect such a firm to be viable.
Pavel argues that because people with “malign, belligerent preferences can choose to pay a premium to private security companies that are willing to act on them,” such “companies can survive and thrive in an environment where peaceful resolution of conflicts is not valued and in fact is actively discouraged.”Footnote 30 The first part of this claim (that some people exhibit preferences for violence, oppression, etc.) is indisputable. Yet the market anarchist arguments presented above challenge the further claim that such institutions will “survive and thrive” under market anarchism. While not impossible, it is also not (for reasons given above) particularly plausible. Further argumentation would need to be given to demonstrate the likelihood of this outcome.
While the issue is complex, two final points are worth noting. First, people with intense racial animosity (for instance) who are willing to incur the costs of jail time are able to commit acts of violence against those they vilify under contemporary statist conditions. Yet the proportion of racists who are willing to incur this direct cost to perform such violence is (thankfully) relatively low. This does seem to imply that even malevolent racists are more “cost sensitive” than we might be inclined to imagine. Secondly, it is worth noting that oppressive violence against vulnerable populations, where it prevails, is often facilitated (when not outright enacted) by the state; it is arguably the lack of a legal right to resist the state’s monopoly on violence that leaves racial and other minorities so vulnerable in such instances. A world in which no such monopoly existed, and in which oppressed groups could freely unite for purposes of self-defense, seems likely to experience considerably less oppression than currently exists.Footnote 31
IV. Anarchy and International Legal Order
Having defended the market anarchist position against some of Pavel’s critiques, I now follow her in seeking to relate the insights gleaned from the analysis of anarchism to issues attending the creation of international legal order. On the one hand, I use the analysis of market anarchism provided above to seek insights into possible mechanisms for achieving enforceable international law. On the other hand, I use the disanalogies between anarchist society and international relations among sovereign states to suggest why some problems of international law might be practically insoluble.
Hobbes, one will recall, explicitly argued that contracts are not binding in the absence of a reliable mechanism of enforcement. Taking this idea seriously, we might suggest that agreements entered into without specified mechanisms of enforcement should not be taken as real agreements. The logic of the Hobbesian argument suggests that agreements in the absence of credible enforcement amount (at best) to hypotheticals (i.e., to declarations that if a means of enforcement were available, I would be willing to abide by the specified terms).
As Pavel herself notes, a clear solution to this problem would be to have specific enforcement mechanisms built into international agreements (e.g., specification of a third-party who is entitled to enforce the treaty’s terms in case of noncompliance). The problem here is that powerful states resist such mechanisms, reserving the option to defect when it suits them. This confirms once again Pavel’s central observation that all legal systems must make provision for enforcement against a wrongdoer who is noncompliant. In the international case, a central obstacle to this would seem to be the significant differential in military and financial power among the various states. Designating a third-party enforcer is only useful if this enforcer is itself powerful enough to plausibly ensure compliance.
To illustrate, return again to the stolen laptop example offered above. Now suppose, however, that the culprit is Jeff Bezos. Clearly, if Bezos were convicted of this theft but wanted to resist enforcement of the court’s judgment, he could hire a private army to do battle with my security agency. This would be economically ludicrous, since the cost of raising a private army far exceeds any conceivable benefit my aging laptop could provide. Nevertheless, the basic point stands. If concentrations of resources are sufficiently skewed, it is possible for someone to amass enough private power as to be essentially immune to prosecution (although they must then contend with the age-old problem of how to avoid being plundered by their own army).
What this fanciful illustration suggests is that any legal system will struggle with enforcement to the degree that significant disparities of power exist. Thus it would seem that, for true international law to exist in a manner analogous to the market anarchist vision, countries would have to be willing to scale down their militaries and weaponry (or scale up the militaries and weaponry of other nations and/or third-party enforcers) in such a way as to render the balance of power approximately equal. Whether there exists a central “authority” with the right to coerce is less important, anarchists suggest, than whether there are agents powerful enough to refuse to comply with this authority’s judgments. In other words, legal order becomes increasingly possible to the degree that no single actor has the resources to unilaterally resist the enforcement of legal decisions. In a global order modeled on the anarchist approach, there would have to be enforcement agencies that could realistically overcome the resistance of a defecting party (or at least make resistance more costly than compliance).
Of course, such matters become complicated because nations are not people, and the costs and benefits of warfare are distributed in highly unequal ways.Footnote 32 Furthermore, the number of sovereign states is small compared to the number of people in even a moderately sized country. One thing that makes the anarchist approach to legal order potentially plausible is that several “agencies” could exist, any one of which would have the power to overcome individual or small-group resistance. Yet what sort of “agency” could promise to overcome the resistance of the United States or China? If the agencies are weaker than the entities they are meant to police, the system is unlikely to function. This raises the question of whether polycentric global legal order would be possible so long as nation-states remain as large as they currently are. The basic anarchist contention is that a rough equalization of power is the primary condition for a meaningful equality before the law.
The situation might be different, however, in relation to contract or treaty enforcement. This is because, even in a world of highly unequal power, schemes can be devised which incentivize everyone’s compliance. Imagine that I wanted to enter into a contract with Jeff Bezos in an anarchist world. Under the imagined conditions, it would be common knowledge that agreements with Bezos were unenforceable. If Bezos could raise an army with more firepower than my entire protection agency, then I clearly have no chance of holding him accountable should he choose to back out of our agreement. Under these conditions, any “agreement” with Bezos would amount to me trusting him to honor his word. I would be powerless in the face of his defection.
How could this be remedied? In practice, reputational mechanisms would likely play a large role. As noted above, society would come to ostracize people who were known noncooperators. In the absence of this, however, a genuine agreement would only be possible if it included some built-in mechanism of enforcement. This would require, in a modern locution, that both parties have some “skin in the game.” Anarchist theorists have pointed out that, historically, societies have come up with quite creative ways to solve such problems. The exchange of “hostages,” for instance, sometimes served this purpose. Hostages in this case were not (as today) people captured by an enemy and held for ransom. Rather, they were given by a potential ally as an assurance.
In the Bezos case, we can imagine scenarios for achieving a similar incentive structure (without actual hostage exchange). We could, for instance, set up a financial instrument that automatically paid me a lump sum in the event of his default (a smart contract established on a blockchain might serve this purpose). A similar effect could be achieved through an arrangement in which Bezos would be required to pay me upfront (since my fear of his nondelivery is quite reasonable) whereas I would only have to pay Bezos at a specified later date (since my noncompliance is virtually unthinkable in the face of his overwhelming strength).
Such examples, however fanciful and stylized, provide some useful insights. Under anarchism, i.e., in the absence of sovereign authority, people must devise incentive-compatible methods for ensuring compliance with agreements. This “realist” approach to contracting implies that an agreement which lacks a viable enforcement mechanism is meaningless. A contractual agreement which I have no obligation to fulfill, and from which I can back out at any time, is not a contract in any meaningful sense of the word. This is plausibly how we should think about many international agreements entered into by powerful states today.
What comparable mechanisms could ensure accountability in international agreements? Consider the Paris Climate Agreement. Nations can fail to meet their pledges without consequence (excluding, for the moment, reputational considerations). Properly designed mechanisms could potentially remedy this problem. Imagine, for instance, if climate pledges were accompanied by the requirement of paying billions of dollars into a climate relief fund. These funds would then be returned to the donor countries in stages as they met their emissions targets. The funds not so returned would be used to compensate those nations who suffered most egregiously from global warming (either as compensation after disasters or as funds for proactive mitigation). We would, presumably, see much more rigorous fulfilment of pledges in such circumstances (though, if this analysis is correct, we would likely see far fewer pledges as a result).
Devising the right set of mechanisms is obviously no easy task. Nevertheless, anarchists have shown that such mechanisms have been developed time and again by people who live, for whatever reason, under anarchic conditions. Over time, mechanisms are developed that reasonably ensure compliance on the part of powerful actors. The virtue of the anarchist position is that it puts the question of practical efficacy above that of theoretical purity. Anarchist arrangements, here as elsewhere, are primarily focused on maximizing the likelihood of peaceable coexistence. They take the imperfect world of unequal power and seek the creation of institutions and norms that minimize its effects (while also, of course, working to minimize these disparities in the long run).
To reiterate, Pavel is right to emphasize that the presence of coercive enforcement is a non-negotiable element of legal order. If parties are free to evade their commitments at will, then these commitments are rightly seen as merely symbolic. Yet what the detour through market anarchy has shown, I hope, is that the need for enforcement should not be confused with the need for a single entity possessing a monopoly on such enforcement. What matters is that the possibility of enforcement is credible and that evasion is costly. The great virtue of market anarchist theory here is in emphasizing the many ways in which, in the absence of sovereign authority, such reliable enforcement can be achieved. If any actor claims to be entering into an agreement, yet refuses to accept a mechanism that incentivizes their compliance, we may rightly regard such “covenants” as nothing more than words.
V. Conclusion
This paper has attempted to build on Carmen Pavel’s insightful analysis of the relationship between anarchist and international legal orders. It has been argued that market anarchists have responses to some of the structural problems diagnosed by Pavel, and that attending to such responses offers interesting potential insights into possible institutionalizations of international legal order. I do not consider the present argument conclusive, but I hope that it is generative. In closing, I offer a few lines of inquiry that would seem, on the basis of the present analysis, worth pursuing.
First, how valid are the market anarchist responses I have provided? While I think it is clear that Pavel overlooks some features of the market anarchist position, this does not in and of itself demonstrate anything about the adequacy of the responses themselves. I have offered what I hope are strong reasons for taking these defenses seriously, but I have not provided anything like an all-things-considered defense of market anarchism.Footnote 33 Rather, I hope that clarifying the nature of the market anarchist case can lead to further productive dialogue regarding its possible virtues and defects.
Second, how helpful is market anarchist theory in offering suggestions for addressing problems of international legal order? As noted above, the market anarchist analysis seems to suggest the importance of distinguishing between issues of international law in the proper sense (e.g., human rights law) and issues of contract enforcement (e.g., abiding by treaties). I have tentatively suggested that anarchist theory offers interesting and potentially quite useful proposals regarding the second issue. I have had less to say regarding the first issue, largely because the disanalogies between sovereign states and individual human beings are significantly magnified in this case. Given the wildly unequal distribution of power currently existing among sovereign states, it is difficult to imagine how the market anarchist solution of polycentric legal order among competing providers could be applied. From a market anarchist perspective, this raises two further questions that seem worthy of pursuit. First, what types of equalization of power would be required to enable a generally polycentric global order? Second, might the difficulties attending the creation of true international legal order be a further argument in favor of anarchist ideas (in the sense that true legal order might only be possible in the absence of sovereign nation-states)?
At a minimum, I hope to have shown that there is much more that is worth saying on these topics. Pavel has done us all a great intellectual service in offering such a forceful account of the need for nonconsensual legal enforcement. I hope that the present paper succeeds in offering some persuasive evidence for the capacity of anarchist theorists to respond to Pavel’s challenge. And this, I hope, offers us all greater clarity about the issues that are in fact at stake in the debate between proponents of anarchism and their detractors. This debate is sure to be ongoing. I am satisfied if I have made a modest contribution to its advance.
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