Mises Daily Articles
Martial Law vs. Market Law: Reflections on Boston
There are two kinds of people in the world: those who respect coercive authority and consider it legitimate, and those who do not. The former group is likewise split into two factions: a relatively small group that, for whatever reason, essentially worships power, and a much larger one whose members merely tolerate authoritarianism, either as a matter of expedience or habit. In the wake of the recent bombing at the Boston Marathon and subsequent military-style manhunt, it seems clear that the great majority of Americans may be categorized as either power-worshiping or power-tolerant.
To be sure, the police came in for a fair share of vehement criticism from a number of established commentators. Ron Paul, for example, stated flatly that the people of Boston had been given “a taste of martial law” and likened the situation to “a military coup in a far off banana republic,” while at the other end of the spectrum, the World Socialist Website denounced the tactics of the police as having “no precedent in American history,” compared Boston to “a city under occupation or in civil war,” and claimed that the news media had “fomented fear and hysteria, spread ungrounded rumors and justified the police state measures of the Obama administration.”1
Yet to the great majority of Americans, as well as to most Bostonians, the authoritarianism of the police was fully justified by the extraordinary circumstances. The aim of the “lockdown”2 was to protect the public from a fugitive and presumably armed terrorist. Any means to achieve this goal were therefore a priori acceptable, the fact that US citizens are about eight times more likely to be killed by a police officer than by a terrorist notwithstanding.
Can the two parties of this debate both be satisfied? Can the Ron Pauls of the world be free of tyranny and the “Boston Proud” set feel safe at the same time? Yes, but not so long as the provision of security services remains monopolized.
Market Law vs. Martial Law
In law enforcement as in any other hampered or fully centralized market sector, the real problem is never the visible, concrete symptom, but rather the underlying condition that has brought it about. Whatever the particular type of problem may be in any given case, the catalyzing condition, almost invariably, is monopoly.
Being the sole legal provider of any service allows for greater flexibility in customer relations (to put it politely) than would otherwise be practicable, and when the service involves sending men with guns to people’s homes, this is not a trivial consideration. Over time, monopoly policing will tend to become increasingly autocratic, even in circumstances far less extreme than a full-scale manhunt.
We need look no further for evidence of this than Boston, which in a very real sense was already under quasi-lockdown even before the marathon began. In this video released by the Massachusetts Bay Transportation Authority Police a few days before the event, the Authority made clear the types of conduct by citizens that it would tolerate. Residents were lectured on the need to be “respectful to one another,” warned that any public drinking or “rowdy behavior” would be met with “zero tolerance,” and were even expressly prohibited from gathering on their own rooftops and porches.
Yet all this, it seems, raised nary a Bostonian eyebrow. Is it any wonder they acquiesced so readily in the manhunt as well?
We may protest the unconstitutional invasiveness of these things all we like, but they are merely effects that, without some form of monopoly protection, could never arise. Under free competition, any private security firm that resorted to draconian tactics would be swiftly abandoned by its subscribers in favor of its less intrusive competitors, thus marginalizing or driving it out of business altogether.
This is another way of saying that in the market law society it is the citizens who would tell the police which types of conduct would be tolerated, and the latter could not place the former under anything resembling “lockdown.” Nor would this situation be in any way analogous to a political system of direct democracy in which the majority could use the police as a tool for imposing its own arbitrary behavioral standards on the minority. For a private firm with multiple competitors, the alienation of any segment of its customer base, however minute relative to the whole, could easily mean bankruptcy. A private police company in a free security market could no more subjugate its own customers than a restaurant can force-feed its patrons. And tyrannizing non-subscribers would bring it into violent conflict3 with its competitors and society as a whole — something no private business could afford.
All this has been pointed out many times. However, a competitive law enforcement market offers other less apparent but equally valuable mechanisms for the avoidance of conflict and the promotion of efficiency, goodwill, and cooperation between the police and public.
Consider a high-priority manhunt along the lines of the one in Boston. Under state monopoly policing, the government dispatches SWAT teams riding in “armored personnel carriers,” which, coincidentally, happen to look a lot like tanks. Upon reaching their target neighborhoods the officers disembark, fan out across the area and show up unannounced on people's doorsteps, armed to the teeth and looking like the Imperial Storm Troopers in Star Wars. Confusion ensues. Babies cry, children gawk, cats scurry up trees, and millennialists think it’s the Second Coming. Residents are told to come out with their hands up and wait outside while strangers with assault rifles search their homes. Enough marijuana gets flushed into the municipal sewage system to stone the city’s entire rat population.
Market-based policing could not be conducted in this way. However odd it may sound at first, in a private law society, individual firms might differ significantly in the sorts of “manhunt services” they offered. Depending on consumer preferences, they might even offer individualized contracts. Much as insurers can customize policies to suit individual needs, and medical patients can sign a “do not resuscitate” order in the event of catastrophic illness or accident, clients of private police companies could stipulate in advance the sorts of invasive actions they would accept and under what circumstances.
Some might be perfectly comfortable letting officers enter their homes without notice and for almost any reason; others might insist on prior notification and/or third-party verification of emergency conditions or probable cause. Modern data management and communications technologies would make it a simple matter for officers in the field to know instantly which houses could be searched right away, while an automated phone system could call hundreds or even thousands of other homeowners simultaneously, inform them of the situation using a digital voice recording, and allow them to instantly grant or refuse permission to enter simply by pushing a button or saying the words “yes” or “no.”
This idea is easy to ridicule (just imagine picking up the phone and getting a recorded message that said “To allow officers to search your home for a deranged fugitive terrorist, please press 3.”). But hyperbole aside, something along these lines would easily be feasible, as would many other possibilities as yet undreamed of. It would certainly represent an immense improvement in any case over the present system of tax-funded monopoly policing in which officers may enter anyone’s home at the discretion of their superiors, and even order residents off their own porches and roofs.
Many people will reflexively dismiss these unfamiliar ideas as “utopian,” and may raise numerous objections to them. They may counter, for example, that any system of pre-existing contractual arrangements would allow armed and dangerous criminals to evade capture simply by taking refuge on property where police are bound by “no search” clauses. Moreover, a small group of, say, terrorist bombers could even purchase their own house in advance, insist on a strict “no search” provision in their security contract, and then simply go home after committing their crimes and enjoy full immunity from prosecution!
Such objections are, however, plainly groundless. The first fails because it overlooks the obvious fact that the terms of contracts between security firms and their subscribers would be strictly confidential; criminals would have no way of knowing which houses were “safe” and which were not.
The second objection is untenable because, absurdly, it transforms the “no search” provision into de facto immunity from prosecution — an entirely different thing and an arrangement to which no police company could possibly consent.4
A “no search” clause in a police contract would and could be valid only for cases involving more or less random searches. If the police, whether public or private, had strong reason5 to believe that a wanted criminal was hiding on X’s property, X would then have to allow his property to be searched because a refusal to do so would be tantamount to an assertion that his right to privacy superseded the rights, not only of the criminal’s victims to justice, but also of the community at large to protection from a known victimizer.
If we furthermore assume that the suspect really has taken refuge on X’s property, then by refusing a search request, X would also be precariously close to aiding and abetting, which is a crime in itself and cannot be protected by any sort of legal contract whatever.
Finally, some people may fear that giving homeowners such a large measure of control over access to their property would result in almost everyone opting for “no search” contracts. Although it is not immediately clear why this should be considered problematic, the conclusion itself, at least, seems prima facie defensible. However, it suffers from two problems. First, even under the present system, citizens supposedly already have a “no search clause” in their “contract” with the government. It’s called the Fourth Amendment. The only difference is that the state, being a monopoly service provider, can breach the contract with virtual impunity.
More importantly, however, this final objection overlooks what may be the single greatest virtue of market law. In simplest terms, coercion provokes conflict. In fact, coercion is conflict. In all coercive relationships one party — the coercer — must necessarily assume a superior role vis-à-vis the other.
Such relationships therefore naturally foster antagonism, defiance, and a sense of victimhood that makes peaceful cooperation impossible. Voluntary association, on the other hand, simply by respecting individual preferences, communicates genuine respect for the person as an autonomous individual, thereby promoting trust and goodwill between and among contracting parties.
It follows that if law enforcement were to be governed by this principle, fear and/or resentment of the police would be much less intense and far less common, leading property owners to be more amenable to on-the-spot searches. Indeed, many otherwise recalcitrant people might well abandon all reluctance and cooperate fully with the police, simply because the latter had the common courtesy to ask for permission in advance. And since officers, as representatives of their companies, would be fully constrained in their behavior by the freedom of each and every citizen to take his business elsewhere, no one would need to fear that they were letting bulls into a china shop.
Since the catastrophe in Boston, a few other advantageous aspects of market law have been obliquely touched on in the media as well. These include the fact that despite what was surely one of the most intensive manhunts in US history, it was not the police, but a private citizen who discovered the suspect hiding in his back yard and notified the authorities; that the sequestration of people in their homes, whether voluntary or not, probably prevented the suspect from being discovered sooner; and that it was a private and not a municipal security camera that allowed him and his fraternal accomplice to be identified in the first place.
To this list we might add the perverse misallocation of police manpower before the bombing, as officers were focused on deterring such “crimes” as the quaffing of a few beers on the sidewalk, “rowdy” celebrations, and unlawful socializing on porches.
In a private law society, security officers would be freed from the ludicrous burden of fun-prevention so they could concentrate on spotting real criminals before they commit their crimes. There would also be much greater incentives for prevention, since all public events (i.e., private events open to the public) would be taking place on someone’s property, giving the owners of such property a very compelling reason to carry liability insurance to compensate the victims of any crimes that might occur there.
This means that even those with no individual insurance of their own would be indemnified against any injuries caused by the actions of others at public events, even if the perpetrators could not be located. Looking to minimize payouts, the insurance companies would in turn offer incentives to owners to invest heavily in preventive measures, such as the installation of security cameras, better lighting, controlled entrance, the use of bomb-sniffing dogs, or simply the hiring of lay personnel to walk around with walkie-talkies and serve as “extra eyes.”
Final Thoughts: The Structure of Social Revolutions
By now I have had enough conversations with assorted statists on both the “left” and the “right” to know that most people with an established, mainstream view of society and the law will not be persuaded by what is written here, nor probably by any other criticisms, however valid, or visions, however vivid.
All attempts at conversion of the entrenched are likely to fail, and almost everyone these days appears entrenched to some degree. At times it may seem futile even to begin the discussion. Yet, I believe there is reason to be hopeful.
In The Structure of Scientific Revolutions, Thomas Kuhn famously showed how new paradigms in science become accepted. Truly revolutionary ideas, he said, do not suddenly triumph when the scientific establishment becomes convinced of their superiority over existing doctrine, but rather take root slowly as the old guard retires and the torch is passed to the new generation of scientists. “Almost always,” Kuhn wrote, “the men who achieve these fundamental inventions of a new paradigm have been either very young or very new to the field whose paradigms they change.” He also offered an explanation as to what it is that induces the emerging generation to embrace fundamental cognitive shift: “The usual prelude to changes of this sort is … the awareness of anomaly, of an occurrence or set of occurrences that does not fit the existing ways of ordering phenomena.”
We live in anomalous times, and not just with regard to science. Today’s young people know this. They recognize all too clearly that something about the society they live in doesn’t fit the standard explanations their elders have accepted so uncritically for so long, and they are willing to approach the essential questions with an open mind and tremendous energy. In keeping with Kuhn’s thesis, it is they who must come to appreciate the full potential of the market law society, since they are the only ones who can bring it about anytime soon. It is therefore this group to whom we need to speak.
Like the good people of Boston, we libertarians — especially those of us in the anarchist tradition — have our own marathon to run. Thomas Kuhn has supplied us with a map of the territory, and Ron Paul has given us a far more auspicious start than we had any reason to hope for. It’s up to us to keep running, no matter how many bombs go off before we reach the finish line.
- 1. My own cursory perusal of mainstream media reports suggests that they tended primarily to trivialize rather than glorify the use of force as such, while portraying the officers personally as heroes. Time Magazine, for example, describes SWAT teams as innocuously going “block by block, knocking on doors and asking people if they had seen anything suspicious,” whereas this video shot from the window of a private home clearly shows police with weapons drawn, forcing the occupants of a neighboring house to come out with their hands in the air while officers search the premises. This article from the New York Times sports a picture showing local celebrities (Boston Red Sox players) lined up and applauding as uniformed police offers walk past them, in an image that clearly calls to mind the patriotic fervor of a military parade.
- 2. Boston officials have denied the imposition of a “lockdown,” claiming that it was rather a request to “shelter in place.” It is not my intention to settle this question here. Those interested can find more here.
- 3. For a detailed discussion of why private police companies would not and really could not attempt to dominate each other or settle inter-agency disputes by violence, see Murray Rothbard’s For a New Liberty, pages 224-26.
- 4. The modern state does offer a few select individuals what amounts to a "no arrest" clause. It's called "diplomatic immunity."
- 5. The question might reasonably arise as to who gets to decide what is and is not "strong reason." Different societies might answer this question in different ways, of course, but there seems to be no reason why procedures very similar to the state's currently-existing bench warrant system could not be used, with the difference that instead of a government employee (judge) issuing a search warrant, each police company would turn for authorization to a committee of private citizens, all of whom would be subscribers to the company's services.