It Just Ain't So!

By Boudreaux, Donald J. | Freeman, December 2003 | Go to article overview

It Just Ain't So!


Boudreaux, Donald J., Freeman


In 1776 a reliable indicator of an American's opinion of the ideas expressed in the Declaration of Independence was his attitude toward the 1649 execution of England's King Charles I. Liberals, who shared Jefferson's principles, believed Charles to have been a tyrant and hence most deserving of losing his head. Conservatives, resisting the call to liberty, classified Charles's execution as "murder," believing the English revolutionaries of 130 years earlier to have been reckless destroyers of the foundation on which civilization rests: a powerful monarchy.

Indeed, it was Charles's execution that put the fear of chaos into Thomas Hobbes, inciting him to write his 1651 classic, Leviathan. Hobbes was so sure that only an all-powerful monarch could create the law and order necessary for civilization that he famously predicted that lives in a world without such a monarch would be "solitary, poor, nasty, brutish, and short." Hobbes, I'm sure, thought of himself as a clear-headed realist who was immune to silly bourgeois notions of individual rights.

While few people today share Hobbes's commitment to monarchy, most modern folks accept uncritically his deeper premise that law and order can be produced only by government.

This neo-Hobbesianism normally is accepted quietly, as a matter of course. But recently it has been boldly trumpeted. just last year Oxford University Press published Eiam Murphy and Thomas Nagel's The Myth of Ownership, and in 1999 Norton published Stephen Holmes and Cass Sunstein's The Cost of Rights. Both books argue that government is the necessary provider of law, order, and infrastructure; therefore, taxes are the price citizens must pay for civilization. In fact, both books go further-especially Murphy and Nagel's-arguing that rights don't exist without the state.

The Washington Post's E. J. Dionne is smitten with neo-Hobbesianism. he used the dismal occasion of April 15 to instruct readers on the necessity of government and of the taxation that fuels it. "Absent a government committed to the protection of rights, there are no rights," Dionne insisted in his op-ed "The Price of Liberty." Utterly convinced of the truth of this claim, he is "tempted to pick out the two dozen loudest anti-tax propagandists and send them a copy of one of the most important volumes of the last decade . . . [Holmes and Sunstein's] 'The Cost of Rights.'"

Although it appears to Dionne and many others to be indisputably correct, neo-Hobbesianism suffers from at least two flaws: it is mistaken in its facts and defective in its logic.

Factually Mistaken

Contrary to the belief of neo-Hobbesians, law, rights, and the security they beget can be, and often are, provided privately.

A well-documented example is the Lex Mercatoria (law merchant). This is the extensive body of commercial law that began growing a thousand years ago in the Mediterranean region as trade expanded. Medieval merchants scattered around the Mediterranean-from Turkey to Morocco, from Egypt to Spain-had no common sovereign power to whom disputes could be referred. Nevertheless, an impartial, effective, efficient, and surprisingly nuanced body of law developed out of merchants' practices and the expectations generated by these practices. Merchant courts-manned by merchants-became part of this law-discovery and law-enforcement process.

If, for example, a merchant court ruled that a Turkish rug maker owed ten pounds of gold to a Sicilian ship owner, the Turkish merchant would pay. …

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