Progressive Libertarianism

Part 4: Law and Order

Cicero Denounces Catiline, fresco by Cesare Maccari, 1882–1888

Natural Law

I think that the opening paragraphs of C. S. Lewis’ magnum opus is one of the most brilliant expositions of natural law theory. In it, he makes the case that morality is actually “objective” in the sense of being universal and not being relative.

“Every one has heard people quarrelling. Sometimes it sounds funny and sometimes it sounds merely unpleasant; but however it sounds, I believe we can learn something very important from listening to the kind of things they say. They say things like this: ‘How’d you like it if anyone did the same to you?’ — ‘That’s my seat, I was there first’ — ‘Leave him alone, he isn’t doing you any harm’ — ‘Why should you shove in first?’ — ‘Give me a bit of your orange, I gave you a bit of mine’ — ‘Come on, you promised.’ People say things like that every day, educated people as well as uneducated, and children as well as grown-ups.
“Now what interests me about all these remarks is that the man who makes them is not merely saying that the other man’s behaviour does not happen to please him. He is appealing to some kind of standard of behaviour which he expects the other man to know about. And the other man very seldom replies: ‘To hell with your standard.’ Nearly always he tries to make out that what he has been doing does not really go against the standard, or that if it does there is some special excuse. He pretends there is some special reason in this particular case why the person who took the seat first should not keep it, or that things were quite different when he was given the bit of orange, or that something has turned up which lets him off keeping his promise. It looks, in fact, very much as if both parties had in mind some kind of Law or Rule of fair play or decent behaviour or morality or whatever you like to call it, about which they really agreed. And they have. If they had not, they might, of course, fight like animals, but they could not quarrel in the human sense of the word. Quarrelling means trying to show that the other man is in the wrong. And there would be no sense in trying to do that unless you and he had some sort of agreement as to what Right and Wrong are; just as there would be no sense in saying that a footballer had committed a foul unless there was some agreement about the rules of football.
“Now this Law or Rule about Right and Wrong used to be called the Law of Nature. Nowadays, when we talk of the ‘laws of nature’ we usually mean things like gravitation, or heredity, or the laws of chemistry. But when the older thinkers called the Law of Right and Wrong ‘the Law of Nature’, they really meant the Law of Human Nature. The idea was that, just as all bodies are governed by the law of gravitation, and organisms by biological laws, so the creature called man also had his law — with this great difference, that a body could not choose whether it obeyed the law of gravitation or not, but a man could choose either to obey the Law of Human Nature or to disobey it.
“We may put this in another way. Each man is at every moment subjected to several different sets of law but there is only one of these which he is free to disobey.” — C. S. Lewis (Mere Christianity, Ch. 1)

C. S. Lewis, of course, believed that the natural law — this universal code of morality — came from God. He essentially thought that God “wrote” these unwritten laws of morality and “inscribed” them on the human heart. This is why everyone knows them by default. But, the truth of natural law theory does not require a belief in God. Larry Arnhart has made the case for a sort of Darwinian natural law theory, a variety of natural law theory that would be compatible with atheistic naturalism. In Arnhart’s framework, human nature is the product of evolution and the moral sentiments that all humans share were naturally selected by survival pressures.

“One of the most pervasive assumptions in the social sciences is that there is an unbridgeable gap between is and ought. This is often called “Hume’s Law” to indicate that Hume was the first to discover it. Because of this separation between judgments of fact and judgments of value, it is thought, scientific objectivity in the social sciences dictates moral relativism (Brecht 1959). Consequently, one of the most common objections to any Darwinian theory of human morality as rooted in human nature is that this fallaciously infers moral values from natural facts (Kitcher 1985). Even many of those who propose Darwinian theories of ethics accept this fact-value dichotomy: ‘[T]he very last thing the Darwinian wants to do is break Hume’s law by denying that there is a genuine ‘is/ought’ distinction” (Ruse 1986, 251)
“I would argue, however, that far from separating facts and values, Hume showed how moral judgments could be grounded in certain facts of human nature. This explains why Darwin and the new Darwinian political theorists can incorporate Hume’s theory of the moral sense into their evolutionary account of human morality.
“The common interpretation of Hume as having separated is and ought depends on only one paragraph in his Treatise on Human Nature (1888,469–70). Some Hume scholars have shown that if one considers carefully both the textual and historical contexts of this paragraph, one sees that the common interpretation is wrong (Buckle 1991, 282–84; Capaldi 1966, 1989; Martin 1991). The textual context makes clear that Hume is restating Francis Hutcheson’s criticisms of some early modern rationalists such as Samuel Clarke and William Wollaston, who believed that moral distinctions could be derived from abstract reasoning about structures in the universe that were completely independent of human nature.
“Far from denying that moral judgments are judgments of fact, Hume claims that moral judgments are accurate when they correctly report what our moral sentiments would be in a given set of circumstances. Moral judgments do not have cosmic objectivity in the sense of conforming to structures that exist totally independently of human beings. Yet neither do moral judgments have only emotive subjectivity in that they are factual judgments about the species-typical pattern of moral sentiments in specified circumstances.” — Larry Arnhart (Darwinian Natural Right: The Biological Ethics of Human Nature, Ch. 4)

The natural law is a list of unwritten moral principles that all people agree upon. While some people may see these as something created by God, a Darwinian could see them as having emerged through a process of natural selection. The moral sentiments that we have are part of our common shared human nature. The natural law is based on vague moral sentiments and principles that cannot be perfectly put forth in words. But this natural law is felt and understood by all because it is part of our common human nature. And this universal law is the reason that there are no societies that allow wanton violence and theft. Differences between moral codes in different societies generally boil down to differences of opinion on facts, such that if we could ever come to agree on the facts then our values would all align.

“True law is correct reason congruent with nature, spread among all persons, constant, everlasting. It calls to duty by ordering; it deters from mischief by forbidding. Nevertheless it does not order or forbid upright persons in vain, nor does it move the wicked by ordering or forbidding. It is not holy to circumvent this law, nor is it permitted to modify any part of it, nor can it be entirely repealed. In fact we cannot be released from this law by either the senate or the people. No Sextus Aelius should be sought as expositor or interpreter. There will not be one law at Rome, another at Athens, one now, another later, but one law both everlasting and unchangeable will encompass all nations and for all time.” — Cicero (De Republica)

Lysander Spooner

Common Law & Trial by Jury

Over time, the aspects of the natural law that relate to interpersonal relations end up being practically codified in an unwritten rule that behaviors that harm others are prohibited while those that harm no one are permitted. Thus emerges a sort of unwritten civil law that is agreed upon by the members of a society. F. A. Hayek argues that this type of law emerges from customs and that legislation is properly the codification of law rather than the creation of it. Civil law emerges and is enforced by a community prior to it ever being stated in words and written down. In other words, the common law tradition would be a more proper legal framework for a libertarian society than civil statutory law would be.

“Legislation, the deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching in its effects even than fire and gun-powder. Unlike law itself, which has never been ‘invented’ in the same sense, the invention of legislation came relatively late in the history of mankind. It gave into the hands of men an instrument of great power which they needed to achieve some good, but which they have not yet learned so to control that it may not produce great evil. It opened to man wholly new possibilities and gave him a new sense of power over his fate. The discussion about who should possess this power has, however, unduly overshadowed the much more fundamental question of how far this power should extend. It will certainly remain an exceedingly dangerous power so long as we believe that it will do harm only if wielded by bad men.
“Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. Long before man had developed language to the point where it enabled him to issue general commands, an individual would be accepted as a member of a group only so long as he conformed to its rules. Such rules might in a sense not be known and still have to be discovered, because from ‘knowing how’ to act, or being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words. But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will.” — F. A. Hayek (Law, Legislation and Liberty: Volume 1, Ch. 4)

The civil law, proper, is an unwritten set of rules of acceptable conduct that a society expects of its members. These rules became codified in the common law tradition, where customs and legal precedents were acted upon by judges and jurors, and when the rules were written down. The law is properly made by the people and not by legislators. Judges and juries ought to make decisions on the basis of custom and generally accepted principles in addition to considering written law.

“If the judge here were confined to decisions which could be logically deduced from the body of already articulated rules, he would often not be able to decide a case in a manner appropriate to the function which the whole system of rules serves. This throws important light on a much discussed issue, the supposed greater certainty of the law under a system in which all rules of law have been laid down in written or codified form, and in which the judge is restricted to applying such rules as have become written law. The whole movement for codification has been guided by the belief that it increases the predictability of judicial decisions. In my own case even the experience of thirty odd years in the common law world was not enough to correct this deeply rooted prejudice, and only my return to a civil law atmosphere has led me seriously to question it. Although legislation can certainly increase the certainty of the law on particular points, I am now persuaded that this particular advantage is more than offset if its recognition leads to the requirement that only what has thus been expressed in statutes should have the force of law. It seems to me that judicial decisions may in fact be more predictable if the judge is also bound by generally held views of what is just, even when they are not supported by the letter of the law, than when he is restricted to deriving his decisions only from those among accepted beliefs which have found expression in the written law….
“It is now probably universally admitted that no code of law can be without gaps. The conclusion to be derived from this would seem to be not merely that the judge must fill in such gaps by appeal to yet unarticulated principles, but also that, even when those rules which have been articulated seem to give an unambiguous answer, if they are in conflict with the general sense of justice he should be free to modify his conclusions when he can find some unwritten rule which justifies such modification and which, when articulated, is likely to receive general assent.
“In this connection even John Locke’s contention that in a free society all law must be ‘promulgated’ or ‘announced’ beforehand would seem to be a product of the constructivist idea of all law as being deliberately made. It is erroneous in the implication that by confining the judge to the application of already articulated rules we will increase the predictability of his decisions. What has been promulgated or announced beforehand will often be only a very imperfect formulation of principles which people can better honour in action than express in words. Only if one believes that all law is an expression of the will of a legislator and has been invented by him, rather than an expression of the principles required by the exigencies of an ongoing order, does it seem that previous announcement is an indispensible condition of knowledge of the law. Indeed it is likely that few endeavours by judges to improve the law have come to be accepted by others unless they found expressed in them what in a sense they ‘knew’ already.” — F. A. Hayek (Law, Legislation and Liberty: Volume 1, Ch. 5)

The law is something that evolved along with civilization. It was not originally the product of formal legislation and edict. A proper libertarian system of law would be a common law system rather than a strict statutory legal system. The law, of course, is not “set in stone” because it emerges from an application of logic and moral principles to our understanding of facts, so the law will change as our understanding of facts evolves. Though the law becomes incarnate when inscribed on paper, it remains a mere manifestation or representation of a higher law that exists independent of it.

Historically, with such a system of law came also trial by jury. Not only would the judge “be free to modify his conclusions” when he determines that they “conflict with the general sense of justice,” but also the jury would have the ability to nullify the statutory law when it conflicted with the natural law. The libertarian theorist, and lawyer, Lysander Spooner expressed a similar sentiment to Hayek’s when he wrote:

“But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator — that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunal — the government is a despotism, and the people are slaves. If, on the other hand, the rule of decisions be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.” — Lysander Spooner (Trial By Jury, Ch. 3)

Elsewhere, in the same work, Spooner expresses approval of the common law tradition and asserts that the jury under such a system has the privilege of passing judgment not just on the facts of the case but also on the justice of the statutory law itself.

“For more than six hundred years — that is, since Magna Carta, in 1215 — there has been no clearer principle of English and American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
“Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of freedom” — a barrier against the tyranny and oppression of the government — they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
“But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.
“That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object.
“ “The trial by jury,” then, is a “trial by country” — that is, by the people — as distinguished from a trial by the government.” — Lysander Spooner (Trial By Jury, Ch. 1)

In libertarian theory, the law is a product of the people and is merely codified by the government. The people reserve the right to nullify any part of the statutory law that doesn’t accord with the general sense of justice. The judge and jury can nullify a written law by declining to enforce it on the grounds that it is unjust.

Spooner distinguishes between vices (acts that harm only oneself ) and crimes (acts that harm others) and suggests that the domain of law relates to crimes rather than vices. And I think most people generally feel the same way. A common law tradition based on the principles of natural law would tend to only prohibit activities that harm another’s person or property.

“Vices are those acts by which a man harms himself or his property.
“Crimes are those acts by which one man harms the person or property of another.
“Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice towards others, and no interference with their persons or property.
“In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.
“It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice towards others.
“Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.” — Lysander Spooner (Vices Are Not Crimes: A Vindication of Moral Liberty)

Gustave de Molinari

Private and Communal Production of Security

If you aren’t familiar with them, I’d like to introduce you to two important libertarian philosophers, the Belgian economist Gustave de Molinari and the American activist Benjamin Tucker. These two men championed the concept of free competition in security services as an alternative to the traditional, state-provided police force. This concept was both a daring critique of governmental monopolies and a creative exploration of how society might organize itself differently — and on a more voluntary basis — in the realm of law and order. In 1849, Gustave de Molinari wrote The Production of Security, in which he argued for competition in the realm of policing and security. Molinari noted that economists generally recommend free competition, with the production of security being a rare (sometimes the only) exception. Molinari challenges the prevailing belief that the state must necessarily provide certain goods and services, like security, on a monopolistic basis due to their nature as public goods. Instead, he posited that just as with any other service, the free market could supply security more efficiently and ethically. Imagine, instead of a singular, monolithic police force, an array of security providers vying to offer the best service at the best price. De Molinari’s vision was revolutionary, suggesting that competition could lead to more responsive, innovative, and voluntary forms of protection and conflict resolution:

“If there is one well-established truth in political economy, it is this:
That in all cases, for all commodities that serve to provide for the tangible or intangible needs of the consumer, it is in the consumer’s best interest that labor and trade remain free, because the freedom of labor and of trade have as their necessary and permanent result the maximum reduction of price.
And this:
That the interests of the consumer of any commodity whatsoever should always prevail over the interests of the producer.
Now in pursuing these principles, one arrives at this rigorous conclusion:
That the production of security should, in the interests of the consumers of this intangible commodity, remain subject to the law of free competition.
Whence it follows:
That no government should have the right to prevent another government from going into competition with it, or to require consumers of security to come exclusively to it for this commodity.
Nevertheless, I must admit that, up until the present, one recoiled before this rigorous implication of the principle of free competition…. True economists are generally agreed, on the one hand, that the government should restrict itself to guaranteeing the security of its citizens, and on the other hand, that the freedom of labor and of trade should otherwise be whole and absolute. But why should there be an exception relative to security? What special reason is there that the production of security cannot be relegated to free competition? Why should it be subjected to a different principle and organized according to a different system? On this point, the masters of the science are silent, and…[do not] investigate the grounds on which it is based.”

The crux of the argument for competing private police services is rooted in the belief that competition in any field fosters innovation, efficiency, and customer satisfaction. By applying this logic to the realm of security, de Molinari and Tucker contended that private entities, driven by the incentives of the market, would offer better services than any state-run police force could. They envisioned a system where individuals could choose their security provider, much like one chooses a phone carrier or an insurance company today. This choice would theoretically lead to higher-quality services tailored to the diverse needs of a community.

These ideas come to their fullest development in the writings of Murray Rothbard and David Friedman, where it is argued that free competition in the realms of law, security, defense, and adjudication is possible and desirable. While I strongly disagree with Rothbard on a great many issues, the value of his work in developing the theory of private production of security is inestimable. Rothbard presents a world where individual liberty and private property are paramount, underpinned by the non-aggression principle — the idea that no one has the right to initiate aggression against another. In Rothbard’s theoretical market anarchist society, private security forces would emerge to protect individuals and their property. Imagine a mosaic of private firms, competing in the open market to provide the most efficient and satisfactory security services. These firms would operate under the premise of voluntary exchange, where individuals or communities hire them to ensure their safety and enforce contracts. It’s akin to choosing between different brands of coffee, each promising a unique blend of safety and reliability, with the ultimate goal of safeguarding personal liberty and property without the overarching hand of a state.

David Friedman takes us on a slightly different journey, focusing more on the mechanisms of a market-driven law rather than predefined ethical principles (such as Rothbard’s non-aggression principle). In Friedman’s vision, law itself is a product of the free market. Private security firms, in this landscape, not only offer protection but also help enforce the laws and regulations that emerge from agreements between these firms and their clients and between one firm and another. Think of it as a dynamic ecosystem where laws are not dictated from above but rather bubble up from the ground, crafted through the interactions, negotiations, and disputes resolved by various private entities. The competition among firms ensures that laws are efficient and tailored to the needs of the communities they serve, with a focus on dispute resolution and minimizing conflict.

Disagreements between security firms could be resolved through courts. The courts could be private dispute resolution organizations that various security firms contractually agree upon using or they could be more communal in nature, established by communities in order to help peacefully resolve disputes.

The way that private police or security agencies are likely to operate is likely to be closely tied to insurance. An individual may pay a monthly fee to a private police service in order to insure his person and property against theft and destruction through vandalism or foul play. If the individual’s property is stolen, the police-insurance company would pay out on an insurance claim in order to pay for damages. The police-insurance company would then have an incentive to take measures to prevent theft and, supposing theft did occur, they would have an incentive to catch the criminal and either recover the stolen property or make the thief pay compensation for losses or damages.

“One big problem a government police force must always face is: what laws really to enforce? Police departments are theoretically faced with the absolute injunction, “enforce all laws,” but in practice a limited budget forces them to allocate their personnel and equipment to the most urgent crimes. But the absolute dictum pursues them and works against a rational allocation of resources. On the free market, what would be enforced is whatever the customers are willing to pay for. Suppose, for example, that Mr. Jones has a precious gem he believes might soon be stolen. He can ask, and pay for, round-the-clock police protection at whatever strength he may wish to work out with the police company. He might, on the other hand, also have a private road on his estate he doesn’t want many people to travel on — but he might not care very much about trespassers on that road. As on the market in general, it is up to the consumer — and since all of us are consumers this means each person individually decides how much and what kind of protection he wants and is willing to buy….
“All that we have said about landowners’ police applies to private police in general. Free-market police would not only be efficient, they would have a strong incentive to be courteous and to refrain from brutality against either their clients or their clients’ friends or customers…. A free market in police would reward efficient and courteous police protection to customers and penalize any falling off from this standard. No longer would there be the current disjunction between service and payment inherent in all government operations, a disjunction which means that police, like all government agencies, acquire their revenue, not voluntarily and competitively from consumers, but from the taxpayers coercively….
“Every reader of detective fiction knows that private insurance detectives are far more efficient than the police in recovering stolen property. Not only is the insurance company impelled by economics to serve the consumer — and thereby try to avoid paying benefits — but the major focus of the insurance company is very different from that of the police. The police, standing as they do for a mythical “society,” are primarily interested in catching and punishing the criminal; restoring the stolen loot to the victim is strictly secondary. To the insurance company and its detectives, on the other hand, the primary concern is the recovery of the loot, and apprehension and punishment of the criminal is secondary to the prime purpose of aiding the victim of crime. Here we see again the difference between a private firm impelled to serve the customer-victim of crime and the public police, which is under no such economic compulsion.” — Murray Rothbard (Police, Law, and the Courts in Anarchy and the Law: The Political Economy of Choice edited by Edward P Stringham)

Alternatively, other libertarians, such as Karl Hess and Murray Bookchin, have looked not to market competition but rather to cooperation as the ideal solution, envisioning a society where security and legal services are not commodities to be purchased but communal responsibilities shared by all. Under such a communally-based system, security would be provided not by private companies competing for profit but by the community itself, organized through directly democratic, participatory structures.

Murray Bookchin brings us into a world where the concepts of libertarian municipalism and democratic confederalism promise a new paradigm for organizing society. Unlike the market anarchist visions of Rothbard and Friedman, which emphasize market solutions for social organization, Bookchin’s framework is deeply rooted in direct democracy, decentralization, and confederation. Bookchin’s ideas develop upon basic confederalist ideas of earlier libertarian theorists, like Pierre-Joseph Proudhon, Mikhail Bakunin, and Peter Kropotkin, who argued for a very similar approach.

In the landscape of libertarian municipalism, the idea is to create a network of self-governing municipalities, each operating through direct democracy rather than representative democracy. Imagine a world where the citizens of a town gather in assembly to make decisions on matters affecting their lives, from local governance to the administration of justice and policing. In this model, law is not a top-down decree from a centralized state but a manifestation of the collective will and ethical standards of the community. Policing, in turn, would not resemble the centralized, uniformed forces we’re accustomed to but would be more akin to a community watch, where members of the community volunteer or are elected to oversee the enforcement of the laws and principles decided upon by the assembly.

Democratic confederalism expands on these ideas, envisioning a federation of these municipalities and communities, linked together not by a central government but by a shared commitment to direct democracy, ecological sustainability, and social equality. In this system, law and policing would be handled at the most local level possible, with coordination and cooperation between communities facilitated through confederal councils. These councils wouldn’t wield power in the traditional sense but would instead serve as platforms for dialogue, dispute resolution, and the implementation of decisions made through the direct democratic process.

In both systems, the approach to law and policing is profoundly community-oriented. The emphasis is on preventative measures, social cohesion, and rehabilitation rather than punishment. Because the citizens themselves are directly involved in the decision-making processes, the laws are inherently reflective of the community’s values and needs. Similarly, those tasked with policing are accountable to the community in a very direct way, which fosters a sense of mutual responsibility and trust.

Whether we are talking about private police or communal alternatives, either system would (theoretically) lean towards restorative justice rather than punitive justice. There would be no incentive to criminalize non-violent and victimless vices. There would also be no incentive to enforce statutory laws that prohibit such victimless “crimes” — such as consumption, possession, and sale of marijuana, for instance — which do not harm others. Even if such prohibitory laws were to arise, there would be no incentive to enforce them. Regardless of which model you chose, the private security or communal security model, the results would be roughly similar. The “police” would only enforce generally accepted rules, so that unpopular statutory regulations would effectively become nullified at the level of enforcement, similar to the way that judges and juries would be able to nullify unjust statutory laws under an ideal libertarian system.

Looking Through the Dialectical Lens

The dialectical libertarian, of course, recognizes that it is not currently feasible to rebuild society from scratch on such a libertarian basis. He must, instead, insist that we reform the existing system to more closely resemble the libertarian ideal in effect.

Both the private security and communal security models above would naturally focus on restorative justice. The private security firm would seek to restore stolen property to the victim. Catching and imprisoning people for committing victimless “crimes” would be expensive and unpopular. The private security firm would have no incentive to do so. The security firm would only step in when there is a victim. If we wanted to more closely approximate this situation, we might decriminalize all victimless crimes. The dialectical libertarian, then, would suggest that possessing, using, and selling drugs should be legal. Prostitution and the production and distribution of pornographic material should likewise be legalized.

In an ideal libertarian system, the security agents — whether private or communal — would never assault or brutalize any citizen. If the agents engaged in police brutality, they would lose popularity and people would opt to use a competing security service instead. Though we may not have a viable path to our libertarian ideal in the immediate future, we can certainly push for reforms that make the existing system have results more closely aligned to those we imagine would exist in our ideal system. We recognize that the incentives under our ideal libertarian system would be quite different than the incentives that exist under the status quo. Therefore, we might advocate policies that change those incentives in order to more closely resemble our theoretical ideal, even if we cannot immediately transition to a fully libertarian system.

There is little to constrain the behavior of bad cops under the status quo and so, though we cannot immediately replace the current flawed system with our preferred ideal, we can push reforms that put in different constraints and incentives that would prevent police misconduct. Thus, the dialectical libertarian may push for all sorts of police and criminal justice reforms. An obvious place to start would be overturning qualified immunity since no such special privilege would exist for the agent of a private security firm or for a member of a libertarian communal police service. We might also seek to establish a national use-of-force standard. We may also seek to get independent prosecutors for prosecuting police misconduct. We may put forth a requirement that police carry professional liability insurance, which they must pay for out of their own pockets. If cops were to carry such insurance, engaging in misconduct would result in higher premiums and insurance companies may even refuse to insure certain officers altogether if they have a history of misconduct. We may also advocate the creation of a national registry of law-enforcement officers who have been fired for misconduct alongside a national prohibition on police departments hiring anyone on said list.

While we cannot feasibly transition to an ideal libertarian legal system in the immediate future, we can push for policies that would make the existing system more closely resemble our ideal. Under an ideal libertarian system, the rules would be generally agreeable to all. There is a general consensus among people that behaviors that do no harm to anyone do not justify the use of force to restrain the individual engaging in them. In our ideal libertarian system, there are multiple levels where laws can be nullified — an unjust law can be nullified by a judge, by a jury, or at the immediate level of police enforcement. One type of nullification — jury nullification — still exists under the status quo, though it is not commonly used. The dialectical libertarian will support and encourage jury nullification in instances where the “crime” committed was non-violent and victimless — that is, when the “crime” was not actually a crime but merely a vice. The dialectical libertarian would also recommend that police excercise their right to “look the other way” when they see a victimless crime being committed.

From a libertarian perspective, it’s clear that the essence of law and order transcends mere rules and enforcement; they are deeply rooted in the moral fabric of our shared humanity. The exploration of natural law, communal responsibility, and the private production of security provides a vision of a society where justice is focused on the collective pursuit of fairness, equity, and mutual respect. By embracing the principles of restorative justice and recognizing the inherent value in each individual’s quest for happiness and well-being, we can envision a society where the law serves not as an instrument of coercion, but as a beacon of liberty and a guardian of the common good. While the creation of an ideal libertarian society may not be possible in the near future, there are a number of realistic reforms that could be implemented that would take us in the right direction. In this light, the progressive libertarian vision offers not just a critique of the present but a hopeful blueprint for a world where freedom and compassion are the cornerstones of our social edifice, inviting us all to be architects of a more just and harmonious society.