Barnett Analyzes 'Structure of Liberty'
by Ari Armstrong, April 15, 2003
"There's got to be a boss."
That's what a young Randy Barnett finally was told by his grandfather to end an argument about, well, anarchy. Now Barnett is a professor of law at Boston University who has edited a book about the Ninth Amendment, written The Structure of Liberty, and begun work on a new book about the Constitution. On April 3, Barnett spoke at CU, Boulder as a guest of OMF.
Though the title of the talk was "Anarchy is Not Chaos," Barnett said, "It's not something I feel entirely comfortable speaking about in public." In times past, the word "anarchy" was associated with violent revolution, and today most people think of the word as meaning "disorganized" or "chaotic." In Structure, Barnett doesn't even mention the term "anarchy," though he does discuss the notion of a "polycentric Constitutional order."
But libertarians who call themselves "anarchists" (and those who don't but still like the idea) aren't calling for a reign of chaos. The idea is, "You could have a sufficiently ordered society in absence of centralized rule," as Barnett summarized.
So why do most people have a fundamental belief a "polycentric" legal system would descend into chaos, that "there's got to be a boss?" Obviously "there is a truth to this insight," Barnett said. Most of the projects with which we're associated require a boss (or organization of bosses) to run the show. For example, the Libertarian Party of Colorado just elected a "Board of Directors" that has legal power to run the party.
But is it the case that what's true at the local level is true at the broad level of government? "Does there really have to be a single boss?" Barnett asked.
At the governmental level, the "boss" entails a person or group with a "monopoly use of force over a geographic territory." Besides the possibility that many have committed a fallacy of composition, as has been suggested, Barnett also speculated theology may have played a role. Just as God runs the universe, so somebody has to run the earthly realm.
Those on the right believe "there's got to be a boss" in order to keep people from degenerating into hedonism. Thus, we find right-wingers fighting a war on select drugs and banning pornography, prostitution, gambling, etc. Meanwhile, leftists want a boss to prevent the strong from dominating the weak. Thus, many calls for state intervention arise from a Marx-inspired theory of capitalist exploitation. (Many libertarians, too, want a centralized government to prevent the violent from oppressing the peaceful.) Of course, Barnett noted, these are ideal types, and many people hold both sets of beliefs simultaneously. (Barnett speculated, "Most political philosophies tell us [a lot] about the person who holds the political philosophy." I.e., perhaps rightists believe they will become moral degenerates, and leftists believe they will abuse others, unless some centralized force keeps them in check. I think Barnett might be on to something, but I think many other psychological factors are also at work.)
Barnett, then, described two "views of human nature" that give rise to the notion, "There's got to be a boss." And these views are true, at least sometimes. Unless they were discouraged by social force, many people would indeed become a threat to themselves and others. But, Barnett asks, "Have we learned the right lessons?" Even assuming some people will do the terrible things predicted, "How do you solve this problem?"
"Who are you going to put in charge? It's going to be a human being," Barnett pointed out. If we need a boss because human beings are corrupt or corruptible, then we're putting somebody in charge who is corrupt or corruptible. There are "no Spok-like or Data-like characters" we can put in charge. Instead, "we're going to take one of these fallible people, and we're going to give them all the guns."
The first thing we need is a way to make sure the boss is a relatively good person, something Barnett calls the "selection problem." Unfortunately, usually the bad people are the ones trying to gain political power, and so they attempt to mask their real intentions.
Assuming we are able to select a good boss, we then run into the "capture problem." Bad people will try to "figure out a way to get control." For instance, Barnett noted many regulatory agencies are captured by the very companies they're supposed to be regulating and turned into a tool for helping the politically well-connected.
The third problem we face is the "problem of corruption," hence Lord Acton's maxim. Bribes can find the chinks in the moral armor of the bosses. The real problem Barnett sees is the "corruption of having power itself... It changes you from the inside out... It is a kind of intoxicant." Barnett favors rotation in office and term limits. He said the writers of the Constitution didn't predict the ways politicians could become entrenched, leading to a "constitutional defect" that permits career politicians.
Fortunately, the framers of the constitution did implement other strategies in an attempt to lessen the corruption of the political leaders. For instance, voting is "an improvement" over other ways of selecting a leader, in that it creates "reciprocity" between the leaders and the citizens. However, voters typically lack the knowledge to select the best leader, and they have no incentive to gain the knowledge because others will just "free ride" off their efforts. Also, the electorate itself is corruptible, and the majority too can take advantage of others. "The people who wrote the Constitution did not believe in democracy," Barnett reminded us. Instead, they wrote the Constitution partly as a check on state democracy.
The separation of powers is also a useful way to mitigate corruption. However, "back scratching" can overwhelm the checks and balances. Over time, the various branches can develop strategies for cooperating to mutual advantage.
One central check on the abuse of power is the right of exit. But, as Barnett mentioned, "Things have to get really bad before people leave their homeland." Sometimes bad countries restrict people's ability to exit, and sometimes they have a hard time finding a better place that will take them. (I think it unfortunate the U.S. does not actively solicit immigrants from oppressive regions.) What if, Barnett asked, you "didn't have to leave home to leave the polity?" He described secession as "so powerful it tends not to be used."
This is where Barnett's talk really got interesting. Classical liberals found three mechanisms to restrain power: reciprocity (between the citizens and their government), checks and balances (and the separation of power), and the right of exit. What if these restraints could be beefed up?
Barnett said only two "itsy bitsy teensy weensy" changes need to be made to the current system of government in order to achieve a "polycentric order" (quietly a.k.a. "market anarchy" or "anarchocapitalism"). First, those who make the law can no longer confiscate their income by force. Second, legal entities cannot put their competitors out of business by force. That's it!
Barnett's two changes would strengthen each of the main power checks. There's no better reciprocity than what exists between business and client. With a monopolized government that forces you to pay no matter what, "what kind of service can you expect?" wonders Barnett. While "we" the citizens technically oversee the police, Barnett suggested you not attempt to tell today's police officer you're his boss.
Power will be fully separated if ever a system of "polycentric law" comes into being. Different legal agencies will literally be competitors, not simply different branches of the same monolithic government.
And the "right of exit" would be taken to a new level. No longer would people have to leave their homes to escape an oppressive regime. They wouldn't even have to get a whole region to secede. Instead, they could simply change legal providers, as easily as we now change phone companies or car insurers.
But most people react strongly against such a plan. They think the notion of a "boss" must fit a hierarchy of power, and somebody's got to be at the top. But is this reaction really warranted?
Barnett pointed out, "Right now you're living in a world of multiple legal jurisdictions." Even in the United States, 50 distinct regional bodies handle conflicts in a parallel way. For instance, residents of two separate states might get into a dispute in a third state. True, there are higher federal-level courts, but at least the Supreme Court hears only the cases it wants to hear. On a global scale, there is no ultimate authority to decide international conflicts. Instead, Barnett noted, two elements of law -- conflict of laws and civil procedure -- already help determine how parallel legal entities work out disputes. Today, our legal entity is "tied to location." But "why does your legal affiliation have to come with the house you rent?" wonders Barnett.
In case of a dispute, clients of the same legal entity would simply go to a court or arbitration process decided by that entity. If clients of two legal groups got into a dispute, the two entities would agree upon an arbitration process. Generally, "the common law would govern," argued Barnett.
"Why should we care about this?" Barnett asked. No, Barnett doesn't expect to live in a polycentric legal world. But, he argued, the psychological disposition to demand a "boss" keeps people from moving even a little closer to a free society. "The specter of anarchy hangs over liberty," he said. If people can become a little less fearful of a polycentric legal order, they can "take a step in that direction today... What we do at the margin depends on our view of the end game."
Barnett took several questions from the audience.
How would a polycentric system prevent, say, "honor killings" so prevalent in other parts of the world? Barnett noted that's a problem in today's world of monopolistic states. The United States does not currently protect children in India from abuse, for example. However, Barnett discussed the possibility of third-party intervention. He said all people have inalienable rights, including the right of exit.
Is today's executive branch getting out of control? "I am fearful of all branches of government," Barnett said, "but I'm more fearful of Congress," which makes all the laws. Because members of Congress "purport to speak for the people," their rules are granted special legitimacy.
In a polycentric system, could a person simply not hire a legal agency and declare anything she does is legal? Barnett pointed out the foolishness of such an approach -- people without legal protection are "extremely vulnerable." In any case, the agency of any victim of the person would unilaterally pursue justice. However, people could choose more or less restrictive rules within limits. While nobody could choose to legalize murder, for instance, people could agree to live in a religious community with rules governing morality.
What about enforcement? For instance, what if you hired legal services in one town, but got attacked in another? Barnett didn't understand the thrust of the question, which was not put as succinctly as it might have been. He did note that, generally, we'd want to hire cops where we live. I'll add that different enforcement agencies would likely sign pacts agreeing to protect each others' clients.
How would people in a polycentric system prevent a monopoly from arising? Barnett didn't think this would be much of a problem, and that market pressures would prevent it or at least solve it. Of course, the mere possibility that a polycentric system could give rise to a monopoly isn't much of an argument in favor of today's overtly monopolistic system.
Barnett closed by noting one important difference of polycentric legal agencies: "They would simply lack the halo the current system has." And, the less people treat government as a religion, the less politicians will treat the people as subjects.