A Postlibertarian Draft

Or: Who Does Actually Build the Roads?

Introduction: Postlibertarianism - A New Perspective

Although libertarianism has been extensively elaborated and articulated as a theory, it is finding it increasingly difficult to gain further ground in the field of conviction. For most people, if they have taken any notice of it at all, it remains incomprehensible, ultimately a seemingly naive, unworkable utopia. As a result, libertarianism repeatedly encounters an impenetrable wall of incomprehension and often resigns itself to addressing a small, long-convinced audience that is at best seeking confirmation of its convictions. Cheap applause seems to be reward enough here.

Postlibertarianism, on the other hand, makes every effort to build a bridge to the prevailing view by not abandoning libertarian thinking, but rather seeking to transform it cautiously, almost imperceptibly, while always remaining mindful of accessibility and comprehensibility. Above all, it wants to work on what is. It consciously works on the present. To this end, it works on core libertarian concepts such as state, coercion and freedom, redefines them for both sides—libertarians and statists—and thus attempts to bring them closer together.

When perspectives evolve, they deserve a new name at some point that reflects a deeper change or departure. Now, the basis of the previous classical libertarian perspective should not be thrown overboard; in fact, the new perspective still stands, but critically, on the foundation of the older one. A simple “post” as prefix should name this change: thoughts that follow the old ones, but want to give them a new, powerful perspective.

The Starting Point: Libertarianism

In order to talk about the new, it should first be clear what the old is. This poses a certain difficulty, as libertarianism is subject to change and, as a result, to a wide variety of variations. Libertarianism first emerged in Europe as a concept distinct from original anarchism (Proudhon). Joseph Déjacque coined the term “libertaire” in 1895 in deliberate contrast to Proudhon. Proudhon, who leaned heavily towards the petty bourgeoisie, developed a kind of parcel socialism with a community bank alongside his anarchism. Déjacque advocated a far more radical, i.e. left-wing, form of anarchism, practically communism, which sought to dissolve all property relations and principles of merit and thus liberate itself from almost everything. Yes, freedom, i.e. liberation—that is the basic idea of libertarianism. But freedom from what? And freedom for what? That is where the variants differ.

We are referring here to modern libertarianism, which has reaffirmed the concept of libertarianism as an act of liberation. It emerged primarily in the United States in the second half of the 20th century as a synthesis of the classical anarchism outlined above in its petty bourgeois variant and fundamentally changed economic insights. In particular, the classical labour theory of value (Smith, Ricardo, Marx), as strictly advocated by early anarchists such as Proudhon, was now rejected. For the classical anarchist, the value of a good is equivalent to the labour crystallised in it. Any profit retained by the capital owner and not distributed to the workers is regarded by the anarchist, who is always a socialist at the same time, as theft. The classical objective theory of value was now replaced by the subjective theory of value (Menger, 1871). A new description of reality as a shift in perspective usually also changes the moral perspective. This is also the case here: modern libertarians regard profit and interest as market-based results of subjective preferences and therefore as completely justified. Thus, in a voluntary exchange, neither side is deprived of anything—in fact, both sides gain. The mutual gain here is always inseparably linked to preference as the structure of action that drives the exchange. And because both sides can and may expect to gain from the exchange, they exchange.

The result was a form of libertarianism that no longer took a militant socialist/anti-capitalist or even communist stance, but—quite the contrary—expressly affirmed the capitalist idea, even making it its central concern. What it had in common with original anarchism was its rejection of the state, but for different reasons. For the classical anarchist, the state, as an instrument of power and force, was the essential guardian of private ownership of the means of production and thus of the capitalist mode of production with its exploitation of the worker. If the state dies, then capitalism dies, and with it capitalist profit and interest—such was the fundamental anarchist conviction.

For the modern libertarian, however, it is precisely with the appearance of the state on the historical stage that the original or natural private property order is undermined, ultimately leading to its complete dissolution. It is precisely with the state that theft takes place—of the capitalist's capital stock and the worker's labour via levies and taxes. Libertarians see the interventionism of the state as the disastrous and inevitable development towards full socialism, i.e. the complete expropriation and collectivisation of the individual.

Murray Rothbard on the one hand and David Friedman on the other are arguably the most influential protagonists of modern libertarianism. These two because they are the initiators of the two main strands of contemporary libertarianism.

Rothbard pursues a strictly deontological approach to his libertarianism. That is, he defends his conception of freedom—freedom from the state and any initial aggression—not because it leads to better results, but because it is right in itself, derived directly from the logical ‘structure of reality’ of human action.

Friedman, on the other hand, is guided by economic consequentialism and utilitarian thinking, thus pursuing a teleological approach oriented towards ends and utility. In The Machinery of Freedom, he argues that a system of private property rights and free markets is desirable because it leads to better results: greater prosperity, less coercion, greater social efficiency. He justifies libertarianism primarily empirically with the observation that freedom from the state tends to lead to desirable social consequences.

Both libertarian thinkers thus differ in their methods of justification, but are very similar in their moral content. Both believe in voluntary interaction as the basic building block of social cooperation. Both advocate the abolition of the state and regard state coercive structures as unjust or inherently wrong (Rothbard) or inefficient and irrational (Friedman).

Libertarianism is ultimately any striving for liberation from something. For modern libertarianism, this is primarily liberation from the state.

Who Will Build the Roads?

Probably the most frequently asked question to test the practical feasibility of anti-state libertarianism is who would build the roads if there were no state (anymore). However, this question is flawed from the outset and the answer is trivial: roads are usually built by people who have the ability, opportunity and mandate to build roads; usually by road construction companies, regardless of who commissions them. The state itself has never built roads, merely commissioned their construction.

A far more meaningful question would be how road construction is financed, i.e. who has to pay for it and how and by whom it is decided whether and where a road may be built. Ultimately, the question is about who decides in the event of a conflict. In answering these questions, one quickly approaches the core of what the state actually is and what its abolition would mean, or whether and how it can be abolished at all.

What is the State?

I have tried to answer this question several times in previous essays¹². And the answer to it culminates in what I understand as postlibertarianism. But firstly let us discuss the libertarian ideas of the state.

For libertarians, especially Rothbardians, the concept of the state is rooted in Franz Oppenheimer’s definition. For Oppenheimer, the state is “the organisation of the political means” (Oppenheimer, 1929). The political means—that is the robbery. In this sense, then, the state is nothing other than a gang of robbers that has developed so much chutzpah that it has elevated its robbery to a recognised right, even among those it has robbed.

When it comes to road construction, a state appropriates the necessary resources to commission road construction wherever it deems appropriate. At the same time, the state outlaws any other road construction, at least where it would interfere with its own construction.

In contrast, in the postlibertarian sense, a state is a more general concept: A state is a fixed status between people. It is a stabilised relation: “People relate to each other in a fixed, recogniseable, expected, repeatable manner. All involved parties have to imagine that state, and imagine that the other party imagines it in the same way as they do and so on. It stabilises through feedbacks: Each side observes the actions of the other side and may imply a common idea of a state.”

Such a state as a status evolves everywhere where uses are mutually exclusive, where only a single purpose can be realised, i.e. almost everywhere. Take ownership as such a fixed state, where “my” garden is still “my” garden tomorrow. To achieve this, all potential contesters of my garden plot must understand and recognise my property boundaries and not treat them as they please. They must permanently accept their exclusion from my garden. But how does ownership become assigned? Ultimately, any ownership is the result of a lengthy process involving disputes, power underpined communication of costs (threats of consequences), plain physical displacements and exclusions. Whether this status is universally just is irrelevant. Any sense of justice evolves as a result of power-based conflict resolution, not as an ethical universal precondition.

Ultimately, there must exist some kind of public ledger of assignments, even if only in the minds of those involved. Assignment is made on the basis of artificial or natural landscape features (built fences, river courses, etc.). Assignment to whom? To me and my neighbors, identifiable individuals with names tied to recognised entities. Our permanent names (Müller, Meier, Schulze), our fences and signs, shared ledgers—these institutions form our common fixed propertarian state.

If a foreigner, to whom our state must still be unknown and alien, intervenes in our so laboriously established property relations, we will have to defend our state or we will lose it. We must know how to protect it from external access and unwanted change. Or we integrate the outsider in the our propertarian way, selling them a plot as a share of our territory.

A state in the postlibertarian sense is the permanent recognition of a legality that is applied to people and things within a territory, whereby it is not the state that decides over us, but we—in latent or open competition with each other—who decide over the state. The state is a result, an outcome of conflict. The state is the idea of exclusive territoriality; the binding of a prevailing, enforced legal concept to a designated, demarcated area and thus the exclusion of incompatible legal concepts from this area. The state is the final authority in decision-making, or rather the enforced final decision itself, the decision with the greatest authority. An enforcement that, of course, suppresses or represses resistance. Statelessness, on the other hand, is only possible as extraterritoriality, outside a set, regulated system, a protrusion from a territory, an overlap of legal spheres. It is the permanent competition for that final decision, i.e. the physical displacement of competing legal ideas.

The “Stateless” Society

The libertarian alternative to the state is often referred to as anarcho-capitalism, both in Rothbard's and Friedman's versions. How can one even imagine such an anarcho-capitalist non-state?

In Friedman's sense, anarcho-capitalism means the complete absence of legal territoriality—practically a complete contingency (openness of possibility) of what is generally regarded as right. If any remnants of territoriality exist at all, they are the spontaneous result of an area that is demarcated from the outside by conventional states because, for some reason, permanent occupation appears impossible or too costly. Its territorial form is therefore due to its external enclosure by its opposite. Within this area, the only rule is conflict—conflict over everything, especially over any further rules that become concrete.

In this anarcho-capitalist situation, there are no generally accepted and established rules; no laws. It is a polycentric understanding of law, in which different legal codes compete with each other as diverse legal centres of gravity in the same area for permanent enforcement. This is very similar to Paul Émile de Puydt's concept of panarchy (1860). The Greek word pan means everything or everyone; everyone exercises their power and authority, elects their government, or at least tries to. Gustave de Molinari had already formulated a very similar idea (De la production de la sécurité, 1849). Molinari sees the state primarily as a monopoly on the production of security (monopoly in the original sense of a privilege of exclusive offer) and questions this very monopoly, i.e. he asks about the possibility of competition for the production of security. If one takes the concept of security so broadly that one also understands law as a security-creating good, one can certainly regard Molinari as the first representative of anarcho-capitalism, as a proto-anarcho-capitalist.

The question now arises as to what this security should consist of. Ultimately, security is a well-founded expectation that what is to be expected will happen. Ultimately, nothing else is the state as a status; a consolidation in the long term and thus a reduction in uncertainty. That is the fundamental motive for a state: Being able to count on something, such as a contract being honoured, or being able to continue living in your rented flat tomorrow if you fulfil your part of the tenancy agreement and do not have to go to war every day to enforce it or resort to your private defense agency. However, competition has the opposite effect of consolidation or increased security, as the outcome of the competition becomes more uncertain. Competition is disruptive, destructive and creative (Schumpeter), especially when the right as such is fought for to the extreme, i.e. with the use of force.

My garden remains my garden as long as I can exclude others, i.e. as long as I am able and willing to bear the necessary exclusion costs. I cannot cheaply pass on my costs to others. My abilities and possibilities for exclusion are the limits of my property. Of course, there can be agency. I could hire a private defence agency (Friedman's PDA)—a kind of militarised company or enterprise—for a fee to prevent trespassing, misuse, takeover or destruction of my property. So I can delegate the implementation of exclusion. However, if I succeed in permanently excluding others, if the other side gives in, territoriality is re-established: a legal custom, a custom permanently binds itself to a territory. Even the commissioned agency must have previously successfully excluded others from its area of operation, its vehicles, offices, etc. Which route or road will they take to reach and defend my property? Which communication channel can I use to contact them? The same recipient should answer when the same number is called. In order to be able to act at all, these areas of action must first be successfully freed from conflict and dispute and brought into a stable state.

Friedman now hopes for a strong incentive to mediate conflicts between competing legal codes without escalating violence. Mediation will be, or should be, a very likely service in an anarcho-capitalist environment—mediation, i.e. arbitration to resolve disputes between PDAs that defend or enforce incompatible legal views. However, if violent escalation can indeed be avoided on a recurring basis, where will this process of repeated mediation tend to lead? Mediation will increasingly be guided by proven results and develop into a dominant convention. New legal concepts that deviate significantly from the norm, on the other hand, will become increasingly costly to enforce. In the end, a legal code will always dominate in a given area, whether this dominance has been established through violent imposition or mediation. The state is ultimately the decisive, judging, final, generally recognised arbitration body, secured by a stable equilibrium between the powerful (Friedman's PDAs). Territoriality is back.

In contrast, Rothbardian anarcho-capitalism is already a finished end product. While Friedman's approach describes a contested open process, Rothbardianism begins with the universal libertarian code of law. Rothbardian libertarianism is ultimately synonymous with this code of law, based on the concepts of self-ownership, non-aggression, and the original appropriation of unclaimed territory. The intellectual result is a virtually frictionless libertarian state or society—ordered anarchy, as Hans-Hermann Hoppe, a well-known student of Rothbard, calls it.

Of course, there will still be criminals who disrupt the libertarian idyll through theft, robbery, rape, murder, i.e., by violating the libertarian legal code. In order to keep Rothbard's society pure, all destructive individuals are “physically removed” (Hoppe). By whom? By the rightful owners or their authorised agencies. In the Rothbard zone, there is no longer any public space. By public space I mean a space that is still contested, open to conflict and occupation. Ordered anarchy, on the other hand, means that everything has settled into private areas. Everything is assigned. This is probably the “tremendous parcelling” (ungeheure Parzellierung) that Max Stirner already knew about. But where in this world do the outcasts, the troublemakers, the criminals against the libertarian codex go? Where are they physically removed to? Probably only Rothbardian prisons remains.

Territoriality is present in Rothbard's work from the outset, unlike in Friedman's version. A road is financed or built by the person who first occupies and thus owns the necessary space (the so-called homesteading principle). This owner decides who is allowed to use the road built on their land and how much it costs to use it. The difficult task that remains here is the transformation of today's unjust world into this pure libertarian one. In any case, it would be a transformation from one state to another.

If areas of Rothbard's libertarian legal code were to become established, they would hardly differ from traditional states. They would have defended borders and organised roads. Taxes will be converted into fees. Fees will be charged for permanent residence and the use of territorial jurisdiction, as well as for the use of the road system. Those who no longer pay for what they use will be removed. Those who do not want to pay will stay away from the outset.

The Postlibertarian State

Postlibertarianism has overcome the former libertarian obsession with the state. It places itself above the state, making it its concept and thus its property. It has dissolved the state as hypostasis—as a reified substance, as an acting agent, as an ontological object, as an actually existing thing. Of course, the postlibertarian is still surrounded by other people—libertarians and non-libertarians alike—who still believe in the myth of the state, whether in rejection or affirmation. Most people will continue to act as if the state actually exists as an entity, as a thing above them, as an Uberstate; a state that wants to be more than just a solidified relationship between people. These people must be dealt with in the same way as one deals with a large stone lying in one's path, as an annoying fact, as a given obstacle, as a challenging task. These people are the Gegenstand of postlibertarianism, not the state itself. It is their actions that manifest the state and make it real. The state does not exist beyond their ideas, expectations and actions.

Postlibertarianism has accepted the necessity of territoriality—this linking of law and jurisdiction to a territory; not that this link cannot be changed, albeit with effort. It also has a good sense of personalism; in fact, it has practically reinvented this idea that law is bound to the person and exists between persons. But even then, territoriality cannot be ignored as part of these relationships. A person occupies space simply by standing, staying, breathing, living somewhere; their entire existence has an impact on a potentially contested, i.e. scarce, space. If one considers the appropriation of space and the exclusion of others to be legitimate, one is already returning to territoriality and thus to statehood.

Postlibertarianism understands property in praxeological, amoral, positive ways, meaning it explains property solely through the logic of action. In this understanding, property is a bundle of rights. These rights allow me to do something without having to fear the protesting intervention of others at any moment. But what if these rights are revoked? How do I reclaim them—by invoking a “universal moral structure of reality”? Morality as a precursor to law is primarily a result, a way out of a conflict, before it can become a prerequisite for a further state of legality. The law as a corpus of settled rights is merely a habit developed in times of peace to sanction the outcome of a previous conflict. But now war has broken out again and the old convention no longer applies. The structure of reality is not moral, but only limits what is conceivable and possible. Morality is an additional restriction that initially reduces our space of possibilities.

So the harsh reality is that I have lost my property. My property was a relationship that had grown between me and them. It is a practical situation. Without them, I have no property. I need their respect and understanding of my property, even if I have to bend and break them to get it. I am dependent on them. When this relationship is stable, we live in a state of greater security because we develop meaningful expectations and can rely on the consistency of certain things, mainly our property. We can develop in this way because we do not have to constantly argue about the foundation on which we stand and build. Repeating predictable actions creates reputation and consistency. Consistency leads to greater security. Security enables long-term investment. For example, I can grow potatoes on my field. Growth requires time and security. Security that the plant will not be trampled by anyone before it has sprouted, that it will make it to the nutritious fruit, to the abundant harvest. A harvest from which I am the first to benefit, as the one who invested the effort in it. In security, we can build, specialise and exchange. Otherwise, we will end up in a new conflict, struggle and war—until we agree again. That is how the world has always been. There is no room for another utopia.

Libertarianism has too hastily and radically dismissed the Lockean proviso (to leave enough in common for others when taking possession of the world). Postlibertarianism does not initially see this condition as a moral stance. Rather, it is a prediction of what happens when someone takes too much, literally fences others in too much, no matter how justified they consider their occupation to be. People will force their way through, using violence if necessary, and take their share of the world, whether it is already occupied or not.

Postlibertarianism accepts the reality of panarchy: everything is permeated by power relations. Power is effective cost communication. Morality is only one part of this power process. Moral ideas change the costs of action, i.e. an established morality makes actions more expensive or cheaper. Postlibertarianism recognises that the outcome of a conflict leads to a prevailing view of morality, legitimacy and ultimately legality within a territory.

There will always be a strong tendency towards homogenisation and segregation. Postlibertarianism will focus on this natural human tendency and exploit and emphasise it. Similar ideas of law and culture will emerge in different regions that are clearly demarcated from one another. Polycentric law will exist between these centres of stabilised law. There may be a kind of limited competition between these states for customers of a specific legal system, different social structures and defence efforts. The question is how many of these states or options there are to choose from and how costly it is to switch to a different legal jurisdiction.

Above all, it is a matter of personal commitment. It requires a willingness to move, to leave things behind, to pay a price, to learn a foreign language and to adapt to a different culture in order to minimise social friction. Alternatively, one could stay and try to change things locally. That is the real anarcho-capitalism: this great competition between largely stable, well-defended states that have had time to build up a capital structure. Anarcho-capitalism is nothing more than a situation of low system switching costs.

This is the postlibertarian proposal: instead of dissolving an existing state, it proposes dividing it into smaller, more homogeneous parts, even within a larger, loose federation of several states. Let us desecrate the Uberstate, let us touch it, let us take away its aura and reduce it to a mere practical undertaking! The secessionist movement is the true libertarian movement. Separation. It builds on this natural impulse to live among equals, among whom conflicts are minimal.

However, postlibertarianism also encompasses phases of extraterritoriality, change and conflict, which can escalate into open warfare. Violence is the ultimate form of communicating costs; it is used as a last resort to convey the highest stakes, i.e. to express the extreme value of an endeavour to the opponent. Secession will usually be a costly undertaking. Those left behind will not simply allow secession. Therefore, a high level of suffering is often necessary before people can actually decide to break with the old state, i.e. are willing to bear the necessary costs. And it will not be an explicitly libertarian break, but the secession of a sufficiently united and homogeneous group of people who already live and suffer together in a contiguous area, i.e. people with a certain set of values, culture and traditions. The Czech who separates from the Slovak. The Brit who no longer wants to be part of the European pot. The East German who separates from the West German again. The Bavarian who wants to be exclusively Bavarian again, etc.

Conclusion

Libertarianism essentially comes in two forms. One describes the permanent conflict over the supremacy of various legal codes in a given area, ultimately the spatial overlap of competing legal spheres (polycentric law); the other is already a complete, fixed legal code which, if implemented, would ultimately lead to a libertarian state, i.e. one that can successfully prevent conflict over the prevailing legal situation. This raises the question of why this libertarian state does not yet exist, i.e. the largely unanswered question of practical implementation.

Postlibertarianism first breaks down the concept of the state to its most general core—as a fixed social state, i.e. a reliable state of general law that promises security. On the other hand, it still sees itself as a libertarian movement, i.e. a movement of liberation and separation. From what? From an old, undesirable, desolate, outdated state. Postlibertarianism sees the exit here in the fragmentation of an existing state, i.e. in its division and reduction, in the secession movement. In a word: in division—the division of what can no longer belong together and no longer wants to. It wants to break free from the iron grip of increasingly expansive, megalomaniacal state constructs and create more liveable, more manageable alternatives. Alternatives that must also be able to stabilise and defend themselves, so that they ultimately become states. The goal is therefore smaller and, above all, more homogeneous states, which, as the smallest structural units of a legal sphere, compete for “customers.” The actual anarcho-capitalism takes place between these state units, while polycentric law prevails between the states. The “overlap” of legal spheres referred to in the polycentric approach then consists of communication beyond state borders, in advertising to the inhabitants of other states, through a certain openness to those who would fit in and adapt to what they find, i.e. in practice in the movement or exchange of persons between states.

Postlibertarianism thus also recognises the inevitability of territoriality, i.e. the binding nature of a dominant legal idea to a clearly defined territory. The principle of non-aggression (NAP) takes a back seat. Rather, it is about a balance of power in a polyarchic world with numerous centres of power. The courage and ability to secede are the revolutionary means of postlibertarianism, while the willingness to defend oneself is the means to stability. Ultimately, it recognises the dynamic dialectical relationship between the dissolution and preservation of the state.

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