The following is a comment which appears here. It’s worth its own post, I think.
The post “Too unlimited: Adventures in constitutional scepticism” [which appears at Strict Liberalism under the title “Constitutions are for suckers”] attempts to show that so-called “limits” on governments are powerless to contain a determined government, and – a more “ivory tower” point – cannot be known with certainty, in political systems resting on the consent of the governed, to be the determining factor when certain possible (but “unconstitutional”) actions of government do not take place.
I approached the question differently there than I have elsewhere, so, for those who might as yet be undecided I’ll give the simplest version now:
If a constitution is a contract between State and society, there is an insurmountable problem in that one party (the State) is also the enforcer of that contract.
NB. There is nothing here about the “practicality” of anarchy; there is no mention made of anarchy at all. It is entirely possible to deny both the practicality of anarchy and the possibility of limited government at one and the same time.
Regarding the practicality of anarchy, however, I have nowhere said that were the State to collapse right now a perfectly peaceful anarchic utopia would immediately spring up. What I have said – all that I have said – is that it is possible for men to live together without a State. That this must be so can be seen by way of the following:
If a third-party is necessary for men to cooperate with one another, then no government could ever be formed. The members of the government must cooperate with each other to be a government; yet there is no third-party enforcer, no super-government over them. Extending this to “the social contract” that supposedly takes us out of the “state-of-nature,” we can say that if government must exist for men to keep their contracts with one another (if, per Hobbes, contracts without the sword are but “vain breath”) then the social contract must be “vain breath”, too, unless there is a higher body to enforce it, and a higher body to enforce this contract, and a higher body to enforce this contract, etc, etc, ad infinitum.
So men must be able to live together without government, – at least as long as certain rules are in place and enforced. Rules can be divided into two classes, laws and conventions. Following de Jasay, I say that conventions are the only class compatible with a liberal order. A law presupposes a lawmaker whose “will is law” and whom all must blindly agree to follow in advance. Moreover, no law can ever be legitimate: each law must be justified by reference to a higher one, up to a (Jasay’s term) “rule of rule-making” such as “whatever the king says goes”, or “whatever a majority says goes”. This in turn can only be justified by reference to a yet higher rule (a rule of rules of rule-making), and so on and so on.
Conventions on the other hand, have no problems with an infinite regress (as they emerge spontaneously), nor do they require a man to submit to the will of another. The conventions of “finders keepers”, first come first served, what Hume calls “the stability of possession and it’s transference by consent”, the keeping of promises and contracts, have emerged in just about every society known to history – they have done so because they “maximize long-run payoffs”, and everyone is better off if they are followed. A community the majority of whom followed these conventions – and accepted the responsiblity and cost of enforcing them – could obviously survive without a government; what any such society would look like, however, and the methods used by its members to enforce its rules cannot be known in advance.
In sum – and rather ironically – if government is possible then a libertarian or anarchist society is possible. It might not be possible “right now” of course, but what we are engaged in here and elsewhere, in a variety of ways – convincing people to adopt our beliefs – is what can make it possible in the future. Although human nature being what it is, personally I have little-to-no faith in any such society ever being achieved.
The interested reader might want to have a look at “Is government inevitable?” by Peter Leeson and Edward Stringham (available on Leeson’s website) for more on the possibility of anarchism
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