Law is a social institution independent of the existence of the state. Law explicitly recognizes the principles of justice, which can only be consistently recognized as universal for all times and places. These principles serve not only to deliver justice, but also to judge the justice of the laws applied in any society. The state usurps law by a combination of force and ideology, monopolizing the final say in society and setting itself up as the final judge of all conflicts and crimes, including those involving the state itself. The state thus becomes both judge and party in its own cases.
Nonetheless, for centuries before the emergence of the modern state, competing and overlapping jurisdictions coexisted in Europe for social life and conflict resolution. This was not because law was not universally understood as a social institution for resolving conflicts or disputes and providing procedures and justifications for punishment or restitution. Rather, it was because different cultural and political circumstances tended to give rise to different judges for different matters of life. In fact, this setup was more effective in promoting peace and enforcing justice than today’s statism.
Laws were considered as given. So it was very uncommon to create or propose any new laws at all. As libertarian philosopher Hans-Hermann Hoppe recounts, law was considered to be something that that existed eternally and was simply discovered:
“People learned what it was. New law was from the very outset considered to be suspicious, because law had to be old, it had to be something that had always existed. Anybody who came up with some sort of new law, was automatically dismissed as probably a fraud. The subjects, the tenants, had a right to resist. That is, they were not subject to their lords no matter what, because, as I said, there existed an eternally valid law, which protected the tenant as much and the landlord, and if the landlord did break this law, then the tenants had the right to resist, up to the point of killing the landlord.”
Monarchies were once the semi-organic outgrowth of stateless societies, or as Hoppe would say, “of hierarchically structured natural social orders.” Kings were the heads of extended families, of clans, tribes, and nations, commanding “a great deal of natural, voluntarily acknowledged authority, inherited and accumulated over many generations.” And it was within such social orders, together with those of aristocratic republics, that classical liberalism first developed and flourished.
Then, monarchs fell in love with power and the absolutist centralizations began. Therefore, it was absolutism, not classical liberalism, that was the main cause of the end of feudalism. Absolutism gave rise to statism, that is, the forced territorial monopoly of ultimate decision-making and the power to collect taxes. And yet, although far from perfect, as Hoppe notes, there were only a few fundamental things that needed improvement in terms of law during the feudal order of the Middle Ages:
“I do not claim here that this order was perfect, a true natural order…In fact, it was marred by many imperfections, most notably the existence, at many places, of the institution of serfdom (although the burden imposed on serfs then was mild compared to that imposed on today’s modern tax-serfs). I only claim that this order approached a natural order through (a) the supremacy of and the subordination of everyone under one law, (b) the absence of any law-making power, and (c) the lack of any legal monopoly of judgeship and conflict arbitration. And I would claim that this system could have been perfected and retained virtually unchanged through the inclusion of serfs into the system.”
Mostly as a reaction to the abuses of absolutism, classical liberalism eventually spread throughout Europe during the eighteenth and nineteenth centuries, and it became for somewhat more than half a century the dominating ideological movement in Western Europe:
“It was the party of freedom and of private property acquired through occupation and contract, assigning to the state merely the role of enforcer of these natural rules.”
Hoppe explains that classical liberalism was centered on the notions of self-ownership, original appropriation of nature-given resources, property, and contract. And given that all men were subject to the same universal principles of justice, no government could justify itself unless it derived from an explicit contract between private property owners. Nevertheless, despite the emphasis on universal rights that placed classical liberals in radical opposition to all established governments, the central error of classical liberalism persisted in its theory of government. As Hoppe points out regarding the American Constitution:
“As the Declaration of Independence noted, government is supposed to protect life, property, and the pursuit of happiness. Yet in granting government the power to tax and legislate without consent, the Constitution [and thus the government] cannot possibly assure this goal but is instead the very instrument for invading and destroying the rights to life, liberty, and the pursuit of happiness. It is absurd to believe that an agency which may tax without consent can be a property protector…that an agency with legislative powers can preserve law and order. Rather, it must be recognized that the Constitution is itself unconstitutional, i.e., incompatible with the very doctrine of natural human rights that inspired the American Revolution.”
Hoppe complements this by emphasizing that democratic government, that is, the free and equal entry to government, is incompatible with the classical liberal concept of one universal law, equally applicable to all, at all times and in all places. According to Hoppe, from the second half of the nineteenth century, the transition from monarchical rule to democratic rule saw a continuous decline in the strength of classical liberal parties, coupled with “a corresponding strengthening of socialists of all stripes.” And indeed, the unintended consequences for the advocates of classical liberalism have only piled up since then.
Of course, a classical liberal state is not a socialist state running the whole economy. But the problem was allowing the existing state to possibly drift to a socialist one. In this connection, the very hope in the ideal of limited government perpetuates statism and, more specifically, socialism:
“There can be no socialism without a state, and as long as there is a state there is socialism. The state, then, is the very institution that puts socialism into action; and as socialism rests on aggressive violence directed against innocent victims, aggressive violence is the nature of any state.”
It is true that the classical liberal movement served to curb and expose the much more destructive impulses of the socialists. While classical liberals were excessively optimistic about limited government, socialists pushed the institution of the state to the point of collectivizing the means of production to intervene fully in economic life. However, by preserving the essential powers of the state, classical liberals condemned themselves and their ideals to be slaves to that same state. And indeed, what could have distorted the defense of universal rights more than the idea that an institution that inherently violates these rights should be maintained to safeguard them?
Likewise, Hoppe writes that the multiplicity of institutional checks and balances typical of a modern democratic republic are really an expression of the expansion of statism:
“They are intra-government checks and balances, which take the existence of government and the exercise of governmental power from the outset for granted. The existence of a constitution and of a constitutional court, for instance, do not represent limitations on government power. Rather, as part and parcel of the state apparatus, they are institutional vehicles for an expansion of state power.”
In the end, the checks and balances and various branches of government historically championed by classical liberals allowed for better organization of the special interests behind the use of state power. And all this made the state’s power structure more reasonable to public opinion. Taxpayer-funded classes and the entire state apparatus expanded. The role of the state in society increased. Each new state law began to be viewed increasingly with the general approval of the population, and universal principles of justice began to be forgotten in favor of public law, that is, state law:
“As long as they act in an official capacity, democratic government agents are governed and protected by public law and thereby occupy a privileged position vis-à-vis persons acting under the mere authority of private law (most fundamentally in being permitted to support their own activities by taxes imposed on private law subjects).”
The state monopoly of justice cannot remove the possibility of resolving conflicts independently of its monopoly. And this monopoly is in fact the institutionalization of injustice. Thus, in the name of classical liberalism, justice continued to be perverted in favor of the state. Aptly, Hoppe further clarifies the issue by adding economic reasoning to the equation:
“…the same logic that would force one to accept the idea of the production of security by private business as economically the best solution to the problem of consumer satisfaction also forces one, as far as moral-ideological positions are concerned, to abandon the political theory of classical liberalism and take the small but nevertheless decisive step (from there) to the theory of libertarianism, or private property anarchism.”
In a sense, this decisive step is little more than a return to the past, and more precisely to the Middle Ages. It is the recognition of this period of history as a representation contrary to the present, statist social order—as Hoppe describes it, “a large-scale and long-lasting historical example of a stateless society.” Today, although many libertarians still resist accepting this example, statism continues to grow, and the days of absolutism seem almost like a paradise of freedom when compared to the current intervention of the state in people’s lives. So-called libertarian political parties around the world are increasingly degenerating into unfortunate and even corrupt representations of a supposed attempt to combat statism. But the more “realistic” or “practical” the goals and concerns of these parties are, the more the popular radicalism necessary to achieve meaningful social change against statism is lost.
To avoid guaranteed defeat and maintain hope in a true ideal of freedom, it is essential to unmask the entire legal system of statism and embrace a libertarian quest for a grand historical narrative. Because one cannot fight against a legal system without refuting both the theoretical foundations of the system and the historical myths that fuel its legitimacy in the public mind.
