A couple years ago, one Jamin Hübner, who had previously submitted an article to my journal Libertarian Papers, then later appeared on Tom Woods’s show, ep. 1214, to discuss his anarcho-capitalist based Creative Common Law Project.
I thought it was interesting so emailed him comments and constructive criticism. He invited me to join the Advisory Board. I did (see below).
I was updating my bio and making sure this was still a viable project, and could no longer find the board of advisors. So I emailed him, and he told me “the project is going in a little bit different direction than previously” and he will no longer need “further input from the anarcho-capitalist community.” Hmm. Sounds curious.
So looking at the site, I see that Hübner has reversed course. “Creative Common Law 1.0: Anarcho-Capitalism” has become “Creative Common Law 2.0: Anarcho-Socialism/ Syndicalism.” Le Sigh. It’s all confused leftist nonsense now, of course. Same old confused, hoary lefty bullshit—whining about capitalism’s “commodification of everything” and billionaires being too rich, complaining that capitalism maintains its institutions though “violence,” conflating economic power with political power, calling for the abolition “of the employer-employee relationship,” absolute property rights are incompatible with justice, blah blah blah. (It’s all repixeled below in case this, too, goes down the memory hole.)
I should be surprised and disappointed, but I can’t say I am. Why, it’s almost like this is written by someone isn’t a libertarian and never was. Almost. Someone who was only “passing through” libertarianism on their meandering, endless journey through ideologies and faddish, dilettantish interests—a waystation liberta
I’ve seen this phenomenon over the years. Dozens of times I’ve been approached by some dude, usually some greenhorn new to libertarianism, who has all these grandiose dreams of some project to achieve liberty. They ask for advice and support, and often for me to be an “Advisor.” They almost always fail and peter out, the founders losing interest and moving on, or even abandoning libertarianism. Half of the projects I put my name to, if you click on those links they are now 404’s. These flitty libertarians are as cheap as real ones; they quit paying the registrar and let their former dream project lapse. They always assure me their project will start to bring in massive changes in favor of liberty within a very short time, like 6 months or something. I never believe it, but lend my support where I can, out of stubbornness if nothing else. There’s one stupid libertarian project after another, like Galt’s Gulch Chile, Project Lifeboat, the Honduran free cities thing, seasteading… all vaporware, or scams. David Johnston had me working with him on General Governance, an attempt to use Native American (Indian) tribes’ special status to extend their enclaves/citizenship so as to reduce taxes and increase freedom. When Bitcoin burst on the scene shortly thereafter, he was gone and now generalgovernance.org is a 404 or whatever. Or the kids in Rand’s circle while she wrote Atlas Shrugged, just waiting for publication day since very soon thereafter the whole world would be swept by her arguments and become libertarian-Objectivist. Yeah. How’d that work out? Or the political activists who pin all their hopes on some semi-libertarian candidate. Always bullshit. So you get the young enthusiasts who promise the moon and half the time naively believe it. But it never works.
And then you get the waystation types, like this Hübner character. Reminds me of Gene Callahan, who years ago shortly after reading some Mises wrote a book on Austrian economics for the Mises Institute and pretended to be libertarian, but shortly thereafter renounced both Austrian economics and libertarianism. Typical. Always be suspicious of new converts. Youthful enthusiasm is fine but when talking to or interacting with them, be cautious and aware that they may well be off on another lark in a couple years.
So will I ever learn my lesson? Probably not. I won’t say hope springs eternal, but … if you don’t buy a lottery ticket, you can’t win.
Stephan Kinsella (LL.M. King’s College London-University of London; JD, Paul M. Hebert Law Center, Louisiana State University; MSEE, BSEE, Louisiana State University) is a libertarian writer and patent attorney in Houston. He was previously General Counsel for Applied Optoelectronics, Inc., a partner with Duane Morris, and adjunct law professor at South Texas College of Law.
A leading libertarian legal theorist, he is founder and Director of the Center of the Study of Innovative Freedom and the founder and Executive Editor of Libertarian Papers. His numerous publications include Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, 2005; 2d ed. forthcoming 2019), and the forthcoming Law in a Libertarian World: Legal Foundations of a Free Society.
This post updates those interested in stateless legal systems and CCL in particular. A dramatic and unexpected revision is occurring for various reasons detailed below.
Tracing Our Steps: How CCL Began
It’s first necessary to cover some brief history.
I began CCL several years ago to prove that theory could become practice. More specifically, I wanted to show that there is a feasible model of “private governance” and “stateless governance” based on libertarian principles of (a) contract law, (b) property rights, and (c) non-aggression. I never saw myself as perfectly qualified—especially not being a lawyer. But it helped being a professor in the humanities who became a professor of economics, an organizational admin in higher ed, and also a business owner and entrepreneur.
Creating a new governance system is nothing new. Legal systems and governance structures, real and theoretical, are as old as the Egyptians and as recent as Rojava’s democratic confederalism in Northern Syria. There are an endless list of models and proposals that have emerged. In consultation with legal experts and others, I simply proposed not a perfect model, but something workable within the theoretical goals of stateless libertarianism—better known as “anarcho-capitalism.” Naively, I also did not imagine that there would be better forms of stateless governance outside such libertarian theory. (But I knew that major shifts of thought might occur in authoring a project like this, so it’s not all to surprising…)
How CCL v. 1.0 Failed
In my framework at the time, anarcho-capitalism was the only desirable and logical outcome of a stateless society (and because of being stateless, free from needless oppression). However, after two years of research, publishing, and drafting CCL Core, it became clear that the society CCL would create, insofar as being “anarcho-capitalist,” would either (a) terminate into the equivalent of the state, and statism, and/or (b) result in a society that wasn’t just, and thus not really “free.” Let me explain in a rough sketch of points and observations, many overlapping and some repetitive, but it’s as best as I can do:
First of all, a competition of private, corporate armies is more or less synonymous with a war between two states. We can theorize about how it wouldn’t be as bad, or wouldn’t happen, or is funded differently, but given the profit-motive and desire to achieve monopoly status, it is not reasonable to expect a consistently good outcome over time of marketizing such sectors, at least in this crude way (“…the market will figure it out.”)
Second of all, the goal of any capitalist is monopolizing a particular sector of society—or all sectors of society. This is baked into the capitalist system—and as the father of anarchism (Proudhon) wrote many years ago, competition eats itself, because if you win, you’ve created a monopoly (which is anti-competition). A monopoly of rights-protection agencies, court systems and legal protection, etc., is functionally and economically equivalent to the state. “Move to another country” in the statist’s words is similar to “move to another jurisdiction” in the anarcho-capitalist’s words.
Third of all, private concentrations of economic power can be just as dangerous as public concentrations of political power. Simply because a corporation operates within a market system does not prevent forms of exploitation or even social oppression. The lack of a state is a necessary, but not a sufficient condition for a free and prosperous society. This particular theme becomes evident throughout the remaining points below.
Fourth, in an anarcho-capitalist society—which is extension of neoliberalism’s “commodification of everything”—anything can be bought. And if anything can be bought and sold to the highest bidder (that’s the goal: privatizing and marketizing everything hoping that the magic of the market will make everything better wherever it is applied), there is nothing preventing a market power from simply buying everyone out and maintaining total economic control—especially when profitability is the basis underneath the whole economic system (people respond to financial incentives the most). This has already happened with central banks—privately owned entities that print money and buy everyone’s houses and equity with it. The Bank of Japan already owns 70% of private EFTs. Soon enough, the Federal Reserve (again, privately-owned) may own most of U.S. mortgages. It is irrelevant that the state limits currencies by law, for there are other ways of controlling currency privately without any state enforcement. Hell, Bitcoin itself is controlled by Blockstream (a private company) for its development team, and 40% of all Bitcoin is owned by only 1000 people. Not even the anarcho-capitalists can control their own greed! But of course, they can’t, because they’re not supposed to; the goal is not decentralization, but centralization/monopoly of simply a different kind.
In short, decentralized power is anti-capitalist. Decentralized power is only a goal for those who want justice, not a goal for those who want market power and more money. It makes no sense pretending otherwise.
Fifth, it became clear to me that “capitalism” as I understood it was “capitalism” as capitalist apologists defined it, with its own history and mythology that privileged its own class and legitimized its own power. Supposedly, the state is the opposite industrial capitalism—even though history shows crony-capitalism existed ever since the serfs got kicked off the manor. Industrial capitalism and the nation-state evolved hand-in-hand during the same 400-year period for a really good reason: they are complementary, not opposites.
“[Social institutions] do not arise arbitrarily, but are called into being by special social needs to serve definite purposes. In this way the modern state was evolved after monopoly economy, and the class divisions associated with it, had begun to make themselves more and more conspicuous in the framework of the old social order. The newly arisen possessing class had need of a political instrument of power to maintain their economic and social privileges over the masses of their own people, and to impose them from without on other groups of human beings. Thus arose the appropriate social conditions for the evolution of the modern state, as the organ of political power of privileged castes and classes for the forcible subjugation and oppression of the non-possessing classes.” Rudolph Rocker, Anarcho-Syndicalism: Theory and Practice, foreword by Noam Chomsky (Oakland: AK Press, 2004, orig. 1934), 14:
“…this brief summary of the Reagan and Thatcher policies points to a central paradox of the times: that even ‘laisser-faire’ has now become statist, that in practice ‘free market’ policies have been the work of strong, militaristic, socially authoritarian, and debt-financed regimes. Conservative governments are, in short, unwitting but dirigiste agents of an antisocial socialization, not the obedient servants of the law of supply and demand. And the choice for the future is not between an Adam Smith idyll or government intervention, but between top-down and bottom up socialization.” Michael Harrington, Socialism: Past and Future (New York: Arcade Publishing, 1989, 2011), 144.
“Capital…in the political field is analogous to government…The economic idea of capitalism, the politics of government or of authority, and the theological idea of the Church are three identical ideas, linked in various ways. To attack one of them is equivalent to attack all of them…What capital does to labour, and the State to Liberty, the Church does to the spirit.” (Proudhon, Property, 4)
The U.S. colonies (like most colonies) were created partly as a real-estate venture complete with slave-owning (the British were going to outlaw slavery), genocide, and whatever else increased profits. It means little to say “this was an abuse of capitalism,” because this is historically what “capitalism” has been, and the mechanisms of economic exploitation have always been the same: a hierarchy between one group of people with capital/economic power over those who are subordinate; slave/master (slavery); lord/serf (feudalism); king/subject (monarch); employer/employee (capitalism). In other words, power differentials. And the arguments for one is often the same for the other (cf. the table comparing arguments for slavery and the state in Higgs, Delusions of Power).
There is nothing eternal or neutral about employer-employee relationships, or industrial capitalism’s conversion to wage-labor as the primary source of people’s economic well-being. And both theory and history attest to the monopolistic tendencies of societies based entirely on markets.
Indeed, the state is the coercive arm of capitalist interest. The state has never existed separately as such. As often as they exhibit friction (both the state and the capitalist class want to consume all industry and call the shots), they need each other to maintain power and keep the working class in subordination.
Another myth is more fundamental: that of “free and voluntary exchange” that underlies all market interactions. This individualistic, utilitarian, and neoliberal dogma, repeated ad nauseum by anarcho-capitalist and neoconservative apologists, was perceptively challenged by William Thompson nearly two centuries ago when he observed that people without capital (e.g., tools and materials to produce)—like former serfs who were evicted from the manor during the enclosure movement—have no choice but to sell themselves. “The selling of their labor power was not a free exchange, but was coerced. The threat of starvation was as coercive as a threat by violent means” (E. K. Hunt and Mark Lautzenheiser, A History of Economic Thought, 158).
In theory, the resulting wage [in the labor market] was the outcome of a bargain between equals, each of which was ‘free’ to deal with the other. In reality, this was a deal between unequals: between a wealthy buyer and a precarious seller trying to keep body and soul together. The content of market agreement was, therefore, determined not by markets per se but by the social conditions which the markets operated.
Trillions of everyday exchanges tilt in a direction that favors those with more economic power (e.g., capital), accumulating in greater power differentials on the aggregate. No market favors everyone equally, and no market is ideologically or ethically neutral—as clearly seen in the legal redefinition of “property,” “assault,” “family,” “marriage,” etc. throughout history—all of which undergird and determine the socio-economic “rules of the game.” Capitalism simply is not “economic freedom,” nor is “market economies” (which have existed since Old Greece) synonymous with “capitalism” (a recent system of employer/employee and wage labor).
Sixth, contemporary libertarianism is a shill for the capitalist class, which maintains concentrations of economic power and partake in government redistribution of wealth. It is only partially oriented towards liberty.
“Sadly, it is necessary to explain what we mean by ‘libertarian’ as this term has been appropriated by the free-market capitalist right. Socialist use of libertarian dates from 1858 when it was first used by communist-anarchist Joseph Dejacque as a synonym for anarchist for his paper La Libertaire, Journal du Mouvement Social. This usage became more commonplace in the 1880s and 1895 saw leading anarchists Sabastien Faure and Louise Michel publish La Libertaire in France (Max Nettlau, A Short History of Anarchism…By the end of the 19th century libertarian was used as an alternative for anarchist internationally. The right-wing appropriation of the term dates from the 1950s and, in wider society, from the 1970s. Given that property is at its root and, significantly, property always trumps liberty in that ideology, anarchists suggest a far more accurate term would be “propertarian” (McKay, Property is Theft!: A Joseph-Pierre Proudhon Reader, 1-2).
“Libertarian” meant “anti-state socialism” for over a century in all languages and countries until being co-opted for property-rights right-wing pro-capitalism around WWII. This curious use of a term highlights the (abominable for some) similarities between early socialists and anarcho-capitalists: they were both anti-state. The literature and evidence of this is vast, so there’s no need to elaborate. But it again highlights a fundamental difference in philosophy:
- Classic socialists, communitarians, mutualists, and anarchists affirm that concentrations of power, whether public or private, are a danger to civilization and opposed to freedom. (It was obvious to almost everyone in the 1800s that the masters didn’t just disappear. “Monarchy and autocracy were not banished completely in the modern era but rather relocated inside workplaces, where democracy was proscribed. These autocratic spaces then provided their owner-monarchs with the means to agitate against democracy in the political sphere. Before the end of political monarchy, conservatives worried that civilization could not survive without the sovereign leadership of the king and his court. Now…conservatives worry that the economy, and thus civilization itself, cannot survive without the leadership of a boss and executives inside workplaces” (Wolff, Understanding Socialism, 121)
- Libertarians only affirm half of the above, believing that the commodification of everything (applying market forces to all aspects of society) will lead to greater freedom. Capitalism, whose goal is centralized economic power, will somehow magically terminate in as much decentralized power as possible.
Contemporary advocates of capitalism reject “socialism” as if command economies and the collectivism of Stalin are accurate representations—all while benefiting from the redistribution of the state towards themselves. Private corporations generally favor legislation that provides them funds—as witnessed in March 2020-October 2020, the largest wealth transfer in human history:
Seventh, capitalism’s origins are violent violent just like the state’s origins.
“How do you think the landowners managed to get rid of the serfs so efficiently? The answer is: with the help of the state. The king and his government lent the landowners a hand, sending their soldiers in to put down any rebellion by the peasants. And how do you think the new order, underpinning market society was maintained? How were the majority living under conditions of abject dehumanization in the slums of Manchester, Birmingham, and London kept under control when a few streets a way the minority lived in the lap of luxury? To put it simply, private wealth was built and the maintained on the back of state-sponsored violence.” Varoufakis, Talking to My Daughter About the Economy, 84
Industrial capitalism’s labor market is also maintained through violence as necessary—as seen in the histories of the Belgium General Strike of 1902, Lena Massacre (1912), Novocherkassk Massacre (1962), Mold Riot (1869), The Spanish Restoration (1888 and 1901), UGT Strike (1932), Represión franquista, Day of the Galician Working Class, Vitoria massacre, Adalen shootings (1931), Rosvall and Voutilainen (1929), Río Blanco strike, Patagonia Uprising (1920-1922), Catavi Massacre (1942), COB protests (1979), Santa Maria School massacre (1907), Banana massacre (1929), Salvadoran Civil War (1979-1983), Rand Rebellion (1922), Marikana Massacre (2012), Rothbury Riot (1929), etc. (See also Immanuel Ness, New Forms of Worker Organization: The Syndicalist and Autonomist Restoration of Class-Struggle Unionism (Oakland: PM Press, 2014).) This is to say nothing of everyday intimidate, threats, sexual harassment, etc.
In short, colonialism and violence against workers is proof that, even in a “market” with “property rights” and “voluntary exchange,” people are still treated as property so long as it achieves positive economic outcomes for the exploitative class. Indeed, ideologies of “freedom” and “voluntarism” is a cover for power grabs in the same way that “liberty” and “change” are covers for political power-grabs in each election cycle.
Eighth, anarcho-capitalism opposes key forms of social justice—including general representation in the courts. It is bad enough today that one cannot uphold their own human rights without having to pay an expensive lawyer. In an anarcho-capitalist society, this problem is amplified, since all things—rights protection, courts and legal protection—are marketized, meaning people get what they pay for. If they have nothing, they get nothing. The wealthy will therefore have infinitely more protections (physically, legally, and socially) than the poor, and have no incentive to provide for the lower classes since they benefit from this hierarchy. Back to the Future II puts it best when Marty McFly tells Biff that the cops will arrest him if he kills Marty:
In a “free” society of anarcho-capitalism, this only means that one group is “free” to essentially enslave another through market power directly, instead of through market power via the state.
It summary, it was impossible to create a legal system for stateless societies based on absolute property rights, with no capital distribution mechanisms, and no goal of any kind of justice. It amounted to colonialism 2.0, a true “free for all” that empowered those with power and protected no one who had none.
This is still what many people want. They are free to pursue those violent and hopeless ends, and I wish them few fans. Goodbye!
Despite halting at on the eve of Version 1.0. CCL is far from a lost cause, precisely because there are countless ways of devising governance and legal systems that are stateless. It was actually quite clear how it needed to be remodeled, and is currently being revised to reflect new values that are far more sustainable, realistic, and functional. Central to this change is the abolishment of the employer-employee relationship and institution of firms that are majority-owned by workers (cooperatives/mutuals/workers-self-directed enterprises). Autonomy and decentralized power at the level of the firm is essential for any kind of aggregate/macro level of decentralized power. While the most radical, this is just the beginning of revisions.
So instead of Creative Common Law 1.0: Anarcho-Capitalism, we are moving now towards Creative Common Law 2.0: Anarcho-Socialism/Syndicalism (though no label quite quite does it justice). I didn’t ever think would take this type of turn (or at least label!), but no genuine scholar and curious researcher can be in control of the outcome. The end result should prove far more useful and realistic and desirable anyway.
In the meantime, if you’ve followed this project at all this far, it may be good to read works that more accurately reflect this new vision, if you’re knew to the “real libertarianism”: