Ius sine lege
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2004-12-06
(C) 2004
Frank van Dun
Gent, België
Kritarchy
The purpose of this note is to provide a short introduction to the political system of kritarchy and to explain some of the theoretical concepts on which it relies, in particular ‘natural law’ and ‘justice’.
Kritarchy is the political system based on equal justice for all, which is to say on respect for natural law. It differs from other political systems by its consistent adherence to and application of the rules of justice. Even courts of law, police forces and other organisations that look after the day-to-day business of maintaining law, are denied any power, privilege or immunity that is not in conformity with natural law. A kritarchy’s police forces cannot lawfully use their weapons and coercive powers save for maintaining law, that is for defending the natural rights of people and remedying their violation. In contrast with their counterparts in the statist political systems that prevail in today’s world, in a kritarchy courts of law and police forces do not constitute and are not incorporated into a coercive monopoly. Every person is entitled to offer judicial or police-services to willing others; no person can be forced to become a client of any court of law or police force against his will. In short, in a kritarchy judicial and police-services are offered on a free market, which is the natural law of the human world in so far as exchanges of goods and services are concerned.
Because of its commitment to equal justice for all, a kritarchy does not know the usual political distinction between subjects and rulers. It lacks a government in the modern sense of the word, i.e. an organisation with coercive powers that claims a right to the obedience or to the use of the labour or the property of those who inhabit or reside in the area over which its coercive powers are effective. Governing and taxing people by public or private force are no functions of the political system of kritarchy. People are to be left free to govern their own affairs, either individually or in voluntary association with others — and this means that in governing his own affairs each is required to leave others free to govern their own affairs. In this sense, freedom is the basic law of a kritarchy.
It follows that a kritarchy can only exist in societies where, and as long as, the commitment to justice is sufficiently strong to defeat the endeavours of those who use unlawful methods such as aggression, coercion or fraud to further their ends or evade responsibility and liability for the unlawful wrongs they have caused to others. While it is theoretically conceivable that freedom can be maintained by no more than unorganised spontaneous actions of self-defence, in a kritarchy the commitment to justice takes shape in its political system, which consists of a free market for the organisations of justice (i.e. courts of law and police forces) and the means for preserving its integrity.
The term ‘kritarchy’, compounded from the Greek words ‘kritès’ (judge) or ‘krito’ (to judge) and ‘archè’ (principle, cause), appears to be coined in 1844 by the English author Robert Southy. In its construction it resembles more familiar political terms such as monarchy, oligarchy and hierarchy. ‘Kritarchy’ is mentioned in among others Webster’s Unabridged Dictionary, The Oxford English Dictionary and the American Collegiate Dictionary. According to its etymological roots, a kritarchy is a political system in which justice (more exactly the judgment that seeks to determine justice) is the ruling principle or first cause. Similarly a monarchy is a system in which one person is supposed to be the ruling principle or first cause of every legal action, every other person being no more than an obedient subject of the monarch. In an oligarchy a few persons (the oligarchs), acting in concert but without a fixed hierarchy among them, are thought to be the source of all legal actions. In the modern system of parliamentary sovereignty, for example, the members of parliament constitute an oligarchy. All members have equal standing within the parliament. However, the results of their deliberations and decisions are supposed to bind all people who, because of their citizenship or residence, are assumed to be subject to the authority of the state.
If ‘monarchy’ denotes rule by one person and ‘oligarchy’ rule by a few, it is tempting to understand ‘kritarchy’ as referring to rule by judges. However, the use of the word ‘rule’ should not mislead us into thinking that the rule of judges is like the rule of monarchs and oligarchs, much less that it is a particular sort of oligarchy. Monarchs and oligarchs aspire to political rule, i.e. the ability and power to enforce obedience to their commands, rules, decisions and choices on their subjects. In short, monarchs and oligarchs rule by a mixture of direct command and legislation. Judges, on the other hand, are supposed not to legislate but to find ways and means to settle conflicts and disputes in a lawful manner. They do not seek to enforce obedience to their commands as such, but respect for law, which is an order of things that is understood to be objectively given and not something that answers to whatever desires or ideals the judges may have.
In contrast with other political systems, where they have been incorporated as magistrates into a system of political rule and empowered to use coercive means to drag citizens and residents before their benches, judges in a kritarchy have no subjects. Monarchs and oligarchs impose, or allow their servants (judges, prosecutors) to impose, their rulings on those of their subjects on which they want to impose them. In other words, they ‘pick’ their subjects (which is the root meaning of the Latin ‘legere’, from which the word ‘lex’ for legislated or statute law is derived). In a kritarchy on the other hand, judges do not choose which persons will appear before them. Instead, people desiring to have their conflicts and disputes resolved by judicial judgment will ‘pick’ their judge.
The distinctive characteristic of a kritarchy is therefore that it is a political system without the institution of political rule. If one thinks of it as ‘the rule of judges’, one should remember that these judges enjoy no particular privileges or special powers. It is ‘the rule of law’, not the rule of legislators, judges or any other category of privileged officials.
There are many historical and even recent examples of kritarchy or near-kritarchy, and also of attempts to use constitutions and other fundamental charters (such as the Magna Carta, the Bills of Rights of the Glorious Revolution in the United Kingdom and the original amendments to the Constitution of the Unites States of America, the French Declaration of the Rights of Man and of the Citizen) to introduce elements of kritarchy as checks on the powers of states and governments. Unwritten customary laws memorised by tribesmen, such as to this day the Hherr of the Somalis, the Madh’a of the Afar and the Gada of the Oromo, often provide strong support for the decentralisation of power that is characteristic of kritarchy, even if they derive their authority merely from custom and not from a conscious and explicit commitment to natural law.
At the end of the second millennium before Christ, the Jews lived in a system described in the biblical book of the Judges. Their ‘judges’ were not judges in the technical sense of the modern legal systems. They were influential respected men who provided leadership and counsel without having power to coerce or tax. The history of Celtic and Germanic peoples both before and during their confrontation with Roman imperialism, is also replete with examples, as is the medieval period after the collapse of the Roman Empire in the West. Kritarchies were firmly established in medieval Ireland until it fell victim to British expansionism, in Ireland where it lasted until the middle of the thirteenth century, and in Frisia where it survived into the sixteenth century. In the first half of the nineteenth century the European immigrants who settled in the Mid-West and the Far West in North America developed their own brand of kritarchy. In Africa and Asia tribal societies have continued to the present day to adhere to some form of kritarchy, if they have not been submerged in the statist structures imposed by the colonial powers and the indigenous political rulers who took over in the post-colonial period.
While these historical realisations or near-realisations of kritarchy may suggest that it is a primitive political system, it should be borne in mind that most of them fell victim to conquest or to the firm hold on power established by military lords in times of war, who turned ostensibly temporary structures for the mobilisation of men and resources into a permanent apparatus of political rule. It is certainly true that kritarchies are ill equipped to make or endure war for long periods of time. If that is a serious weakness, it is also a great virtue. In any case the vulnerability of kritarchies in the face of massive militarily operations is comparable to that of a small or technologically backward state confronting the might of a large or technologically advanced neighbour. Moreover it is problem that we may acknowledge without losing sight of what a kritarchy has to offer for more ‘normal times’.
We began this note with the statement that kritarchy is the political system based on equal justice for all, that is to say on respect for natural law. What does this mean? The terms ‘justice’ and ‘natural law’ may seem to many to be extremely vague if not meaningless. Some even consider ‘natural law’ to be a discredited notion, an intellectual throwback to a prescientific age. It is alleged that there is no such thing as natural law or that what is called ‘natural law’ is nothing more than an ill-defined set of background principles that may help legislators and judges to keep their decisions from evoking moral outrage among the public at large. However, in discussing kritarchy we have to pierce through the veil of confusion that is woven from these current phantom-notions of natural law. We should therefore take some pains to explain the precise meaning and operational value of the terms ‘justice’ and ‘natural law’.
The search for the true origin, nature and function of natural law is an old one. The first known scholars of human society in the West were the ancient Greeks, who made a sharp distinction between natural and conventional or artificial law. The so-called sophists of the fifth century BC came up with the notion of the human world as arising out of, distinguishing itself from and protecting itself by the progressive perfection of social and technical skills in a ruthless and dangerous natural environment. They also made the distinction between the human world and the particular societies that arise from that world and fall back into it like waves on the surface of the sea. For them the human world was the world of human history as it appears to one who wants to know how people cope with the problems of survival and more particularly what people do to one another. Noting the permanence of the human world and contrasting it with the transient and merely local significance of particular societies, they began the search for natural law or the fundamental order of the human world, while debunking the claims of universal, divine or moral truth made by various political thinkers on behalf of some particular real or imagined society and its ‘way of life’.
Their opponents countered by developing metaphysical theories. With these they purported to show that ‘true nature’ cannot be apprehended by the senses or by experience, but only by complex systems of abstract thought that are beyond the comprehension of the common run of mankind. The main political thrust of their argument was that this ‘true nature’ does indeed vindicate some particular way of life and/or shape of political organisation. In short, denying that nobody should be presumed to ignore the law of human relations, they advanced the claim that without the guidance of experts like themselves, people would never attain anything but a lawless, at best inferior if not chaotic condition of existence.
These metaphysical theories, in combination with older views on the rule of the gods, left many people under the impression that natural law has little to do with nature as it can be observed, but is instead the understanding of what the way of life and the legal rules of an ‘ideal society’ or a society under the direct rule of the gods would have to be. As a result the distinction between the natural universal and permanent order of the human world and the artificial transient and local orders of particular societies became blurred as more and more political, ethical and religious claimed the sanction of natural law. The same happened to the distinction between the rights and duties that have their ground in the natural conditions of human interaction and those that happen to be granted or imposed by rulers seeking to mobilise their subjects according to their own religious or ideological inclinations.
Nevertheless, even within the general framework of metaphysical and theological speculation the attempts to discover and elucidate those distinctions were not abandoned. In his De Vita Spirituali Animae of 1402, Jean de Gerson, a theologian and rector at the Sorbonne University in Paris, laid the foundations for the development of a category of human rights that even God would have to respect. In the turbulent period of the religious wars in Europe that was soon to follow, the concept of natural rights became a prominent weapon in the intellectual arsenal of persecuted minorities and later of a more general resistance to the claims of absolutist rulers and the ambitions of power-grabbing politicians. It is little wonder that natural law and natural rights became significant influences on the process of constitution making in the western states of the eighteenth and nineteenth century. As a result freedom and property were, at least for a time, given a degree of legal protection that is rare in the history of political rule.
At the same time the advances of economic and sociological science tended to promote the general acceptance of the philosophy of natural law. Is was understood that within the constraints of natural law — that is to say in societies in which freedom and property are relatively safe from private and public aggression — the desire for wealth and personal betterment leads men onto the road of material progress. Unfortunately, towards the end of the nineteenth century this understanding gradually gave way to the notion that material progress (‘progressive evolution’) is the ‘natural law’ of the human world. Consequently, wealth and welfare were taken to be the true ‘natural rights’ of men, and ‘justice’ was re-interpreted to mean the efficient production and ‘fair’ distribution of wealth. Economic and social policies, and the theories that inspired them, began to wear down the constraints of natural law that had not long before been accepted in constitutions and legislative enactments. Despite this setback more or less original work in the field of natural law continues to be done, some of it — such as the works of Ayn Rand and Murray Rothbard — reaching large audiences worldwide. Other significant work received much less attention, for example Frank van Dun’s book on the fundamental principle of law (1982 in Dutch), which makes a clear distinction between the question ‘What is natural law?’ and the question ‘Why should people respect natural law?’ and provides rigorously argued answers to both. Nevertheless, for the great majority of intellectuals ‘natural law’ is still little more than prescientific metaphysical speculation, while some of those who would otherwise have been sympathetic to it, have now subscribed to the belief that economic analysis and efficient policy have superseded the science of law and the quest for justice as the main safeguards of order in the human world.
In order to clarify the notion of natural law, we have first of all to dispel the common idea that in ‘natural law’ the word ‘law’ stands for a command, rule, norm or other directive statement, or that it states an exception to such a directive. According to that interpretation a law commands, forbids or permits — as if the meaning of a ‘law’ is that something ought or should be done or omitted, or that doing or omitting it is left to the discretion of those to whom the law is addressed. In short, ‘law’ is used here as the translation of the Latin word ‘lex’, the original meaning of which was connected to the mobilisation of armies and the organisation of military campaigns, and which later came to denote any general rule or command issued by the highest political authorities.
What is wrong with this interpretation? First of all, it is no more than a historical accident that the word ‘law’ came to be used as the translation of ‘lex’. It was also and more properly used to translate the Latin ‘ius’, which has nothing to do with the exercise of political authority. ‘Ius’ denotes a bond or obligation arising out of a personal commitment made in solemn speech (‘iurare’, to swear) and in a more general sense the order of human affairs that arises out of such mutual commitments. In other words, ‘ius’ presupposes a condition in which people meet as free and equal persons and arrange their affairs by mutual agreements, contracts or covenants. This is in clear contrast to ‘lex’, which presupposes that one man can unilaterally oblige another.
From this etymological perspective it is no wonder that those who have tried interpret natural law as ‘lex naturalis’, have been led to formulate complicated metaphysical and theological theories to explain how nature can be a legislator or how one can separate from the various ‘directive forces of nature’ (urges, inclinations, desires and the like) those that deserve to be included in the list of ‘natural laws’ and those that do not (and therefore have to be considered ‘unnatural’ or ‘against nature’). None of these theories have been able to convince even sympathetic sceptics. Without the hypothesis of a divine legislator, who for some unfathomable reason prefers to encrypt his commands in nature, theories of ‘leges naturales’ get nowhere — and with that hypothesis, non-believers can only conclude that they are conjured up out of thin air.
There may in the end be only one very thin excuse for using the term ‘natural law’ in the sense of ‘lex naturalis’: just like the leges of a political authority, which bind or oblige people without their consent, the natural laws are supposed to oblige everyone regardless of anyone’s consent. However, that analogy gives us no clue as to how we can determine the directive content of any natural law. It merely identifies it as an unspecified something that is like a ‘lex’ in that it has the power to oblige without consent, but also unlike a ‘lex’ it that it is not backed up by the power to enforce.
Unlike the French ‘loi’ or the Italian ‘legge’ the English word ‘law’ does not derive from ‘lex’. Its etymological root is the Germanic ‘laeg’, which denotes order, while its opposite ‘orlaeg’ denotes the dissolution of order, confusion and in particular a condition of war. ‘Law’ in this sense refers to peace, freedom and friendly relations — the absence of warlike actions that turn people into enemies and threaten their freedom by exposing them to the risk of injury, death, slavery or loss of property. The Latin word for warlike action is ‘iniuria’, that is to say an action that is not in conformity with ius. Thus, ‘ius’ and ‘law’ seem to be conceptually (though not etymologically) related. Both refer to a condition of order in human affairs that is characterised by the absence of warlike interaction. It should immediately be clear that ‘law’ in this sense does not suggest a directive content. Law is not a command, rule or norm, nor is it a collection or system of such directive elements. It is an objective condition that many people may and in fact do value. As such it may inspire them to formulate rules of conduct that help to bring it about or to restore it when it is impaired. We may call such rules ‘rules of law’, but we should then always remember that they are only related to law as means to an end — and that they deserve to be called rules of law only because they have the establishment or restoration of law (or ius) as their end. For that reason they may also be called rules of justice, because the literal meaning of ‘justice’ (Latin: iustitia) is ‘what is conducive to ius’. In other words, justice is what aims at the establishment of the condition in which people interact on the basis of mutual consent. Justice is respect for law in the sense of ‘ius’. Justice does not imply respect for the laws (leges) that might be enforced by the authorities, except in those cases when they are genuine rules of law.
If ‘law’ means order and not command, rule or norm, ‘natural law’ is no longer a mystifying concept. It stands for the natural order of the human world. It is in this sense that the term ‘natural law’ enters into the definition of kritarchy. The question before us is: What is the natural law or order of the human world?
Order in the human world certainly implies that there is no confusion among persons. This is the case when words, works and actions can be traced to their true authors and when their consequences — to the extent that these objectively or materially affect others — are either borne by the authors themselves or else by willing or consenting others. When human affairs are in order, no person need fear that others realise their projects, or take credit for his words, actions or works at his expense but without his agreement. No one can successfully hide his own responsibility for what he said, did or brought about. There is then no confusion as to who is innocent or guilty of a crime, who owes a debt to whom, who was and who was not a participant in some particular undertaking or practice, who participated voluntarily and who was forced or tricked to participate, which exchanges were concluded by mutual consent and which were not, and so on.
Order or law in the human world is that condition in which each person is free from the threat of injurious actions from others, able to live his life and to enjoy his property in an environment of peaceful, friendly relations. ‘To each his own’ is therefore the defining characteristic of law. To maintain that order requires respect for it, i.e. justice, as the guiding principle of human action. That respect includes the constant will to leave or if necessary to return to each his own — that is to say the will to avoid causing physical damage to the person, work or property of any other, to honour lawful contracts and to provide full restitution or compensation to those to whom one has nevertheless caused unlawful harm, as well as the will not to hinder those who seek lawful remedies for unlawful wrongs done to themselves or others.
The foregoing certainly defines a coherent notion of order or law in the human world — but is it the natural order, the natural law of the human world? In order to answer that question we have to take a closer look at the human world. It is first of all a world constituted by the existence of many different and separate yet similar natural persons who are alike in their freedom, i.e. their capacity for independent action, speech and thought and for communicating their thoughts, intentions and expectations to one another in a rational way. In almost all cases humans are by nature physically separate and in many respects different beings, and in those extremely rare cases when they are not physically separate — as with Siamese twins — they are nevertheless distinguishable persons who can separately take credit or be held to account for what they say or do because they too are individually free agents.
Now the concept of law, as it was described above, qualifies as a concept of natural law if and to the extent that the distinctions that constitute it are objective facts of nature. That is without doubt the case. Human beings are naturally distinct, indeed separate beings. Therefore, it is certainly possible in principle to identify the true author(s) of any particular words, works or actions, however difficult the attempt may prove to be in actual situations. There is in principle an objectively true answer to questions about the authorship of anything done or said by human beings, and therefore also about the extent of any person’s lawful property — that is to say, as we shall see shortly, the extent of his right. Questions as to what is mine and what is thine, can be answered with reference to objective facts. But then there is also in principle an objectively true answer to the question whether one person’s sayings or doings do or do not cause unlawful harm to another by invading or infringing upon the latter’s right.
In order to avoid misunderstanding, we should note that not all objective or even natural distinctions enter into the definition of natural law. Age, gender, length and weight of body, colour of skin or hair, proficiency in mathematics or any number of other properties or characteristics that are or conceivably might be '‘given by nature', are not taken into account. They are properties or characteristics of individual persons, but their presence or absence to a greater or smaller degree in any individual does not determine the answer to the question whether that individual is a person or not. In their multifarious combinations they account for a great many differences among persons, but that is all they do. No matter how different persons are in any dimension of shape or talent, they are all persons because of their innate or genetically given freedom of action, speech, thought and rational communication. In that crucial respect they are all alike.
Freedom is indeed the reality of a person, his very being. It is physically impossible to take away a person’s real freedom without at the same time destroying him as a person (by killing him or driving him insane). Now it is certainly true that the destruction of a person’s real freedom can come about as the result of many causes, but not all of these are relevant from the perspective of natural law. It is only when such causes originate within the human world, i.e. from the actions of another person, that the question of the lawful or unlawful character of the destruction of a person’s real freedom arises. This is so because natural law is the order of the human world as such, constituted by the existence of many different and separate human beings.
If there is no way to separate a person from his real freedom without destroying both at the same time, it is possible — and unfortunately easy enough — to destroy a person’s opportunities for exercising his personal capacities without destroying him. We need to distinguish between a person’s real freedom and his organic freedom, the latter being his activity or work as a person. It is again undeniable that any number of circumstances and accidents can cause a temporary or definitive destruction or limitation of a person’s organic freedom, but again and for the same reason that we noted before, it is only when such causes originate within the human world that the question of their lawful or unlawful character arises.
Once the notion of natural law is properly understood as the order of the natural world of free persons, it is easy to grasp the concept of natural right. The word ‘right’ can be used in two different but related senses: the one captures the static aspect of a right, the other its dynamic aspect. In the static sense a person’s natural right is the place or space he occupies lawfully in the natural order of the human world — it is his property. That space is first of all determined by his physical being as a person, and is therefore immediately filled by his real freedom.
Because a natural person’s presence is marked not just by his simply ‘being there’ but also by his activity and work — which in almost all circumstances is the condition of his existence and survival — his work is also constitutive of his place in the human world and therefore of his natural right. Here we meet the dynamic aspect of a right. An obvious qualification must be noted here, because as we have seen already a person’s work or actions can interfere with and even destroy another’s organic freedom and thereby step outside the order or law of the human world. It is therefore only by his lawful activity, that is in so far as he respects the rights of others, that a person can add to his natural right. In the dynamic sense a right denotes any personal action or pattern of behaviour that is in accordance with natural law. Just as ‘natural right’ in the static sense denotes space lawfully occupied by a person’s being and work in the natural order of the human world, just so ‘natural right’ in the dynamic sense denotes lawful activity, i.e. activity that is respectful of that order. Natural law and natural rights are two sides of the same coin.
Thus, a person’s natural right denotes the space of real and organic freedom that coincides with his being and his work. It is therefore as objectively ascertainable as they are. The distinctions that constitute the natural law being facts of nature, natural law is an objective category — and so are natural rights.
Answering questions such as ‘What is natural law?’ and ‘What facts are to be taken into account in discovering the extent of a person’s rights?’ does not by itself provide an answer to the question why we should respect natural law or the natural rights of others. Why should we respect others as the free persons they undoubtedly are (except perhaps to metaphysicians who invoke their own elaborate abstractions to deny the separateness of persons or even their existence as agents)? In what way can natural law be ‘obligatory’ if it is not some rule backed by force or powerful opinion but an objectively identifiable condition of the human world? In what way can the fact that one has no right to do something be a compelling reason for not doing it even if one has the power to do it, wants to do it and stands to profit from doing it? And why should the fact that one has a right to do something constitute a compelling reason for others not to interfere unlawfully with his doing it, even if they can and want to interfere and expect to be better off as a result of their interference?
There are usually many prudential arguments in support of a positive answer to such questions — but often also many prudential arguments in support of a negative answer. Even in well-ordered societies crime does pay occasionally! Taken together, such arguments can lead to no better conclusion than that a person should respect natural law when in his estimation the arguments for doing so outweigh those for not doing so, but not when the balance tilts the other way. No absolute obligation can emerge from such deliberations. That is not surprising because their purpose is not to answer the question whether we should respect natural law, but only the question whether in the particular circumstances of the case we can profit more by doing one thing rather than another.
In their wish to ascribe absolute and unconditional obligatory force to natural law, many have been tempted to place its source outside the human world itself, for example in some metaphysical, divine or supernatural domain. Unfortunately, for most people, that move merely obscures the issues, if it does not completely mystify them. Fortunately, however, such a move is also unnecessary. The question as to whether we should respect the natural order of the human world is not the same as whether it is at all times in every person’s interests to do so, no matter what his interests might be. It is a question that arises only in human in the context of human interaction, where one person faces another, and not in the context of solitary deliberation.
In the face-to-face context, the question is whether each of us should respect the rights of the other. It turns out that he who would attempt to argue that he should not respect the other’s natural rights, inevitably involves himself in dialectical contradiction by denying the very conditions he is presupposing in presenting his argument as something to be taken seriously by his opponent as well as by himself. It would be as if he was saying: I am taking you seriously and I expect you to take me seriously, therefore I expect you to take me seriously when I say seriously that I should not take you seriously. In short, he would be saying: I respect you, therefore I shouldn’t — which is absurd.
There is in fact no way in which the proposition that we — you and I — should respect each other, can be defeated in any rational argument between us. But the order or law of the human world is precisely that condition in which people are prepared to enter into rational argument, each taking the other seriously, and to carry out the commitments they undertake in so talking to one another. This is exactly what the word ‘ius’ conveys. Consequently, if we take ourselves seriously, the conclusion that we are under the obligation to respect one another, is inescapable. This fundamental obligation entails that each is bound to respect others as long as they respect him, and that each has a right to the respect of others as long as he respects them.
These are not empty formulas. The persons they refer to are real beings. By applying the fundamental obligation to the facts of the human world, especially the separateness and distinctiveness of persons, we can derive the natural rights (and corresponding duties) of human beings, progressively extending the argument by taking seriously the rights derived in its previous steps. With respect to the more basic dynamic natural rights, the argument might proceed according to the following pattern.
Because their innate or genetically given capacity for independent action, speech and thought is the determining factor of their particularly human mode of existence, human beings can and indeed must think, speak and act. The natural right to do these things cannot be rationally denied in a lawful manner. That is so because any denial that pretends to be rational would involve thinking, speaking and acting and would therefore assert its own unlawfulness. Only by refusing to think and speak (even to oneself), by behaving without thought can one ‘deny’ these natural rights, but then that denial has no rational aspect whatsoever and places the denier outside the order of the human world. Thinking implies judging and making choices, accepting one idea, opinion, plan or valuation, or rejecting it for another, while remaining conscious of the alternatives that were rejected. Every action carries with it the long shadow of what was not but could have been done instead. Thus, human beings can and must choose. Making choices is an inevitable and therefore necessary condition of man. Choosing not to choose is still to make a choice, and to wander through life without making choices, with no consciousness of any might-have-been, is not possible for any human being who is not raised to be a mute pet in the care of others. Being human implies the right to think, speak, judge, make choices and act. To deny these rights to any human person is to deny his very being. But such a denial logically entails that the denier renounces his own rights and makes himself an outlaw.
Taking the static and the dynamic aspects together, we see that a person’s natural right is that part of the world a person he can point to while saying truthfully ‘That is my right’, and that it is also some activity about which he can say truthfully ‘That is what I have a right to do’. John Locke’s famous formula ‘Life, liberty and property’ is a useful summation of natural rights. Life and property exemplify the static aspect of a person’s natural right, while liberty (that is organic freedom constrained by the natural order of the human world) exemplifies its dynamic aspect.
From the perspective of natural law a person is entitled to say that his life, liberty and property are his right. It does not make sense for him to say that he has a right to any life, liberty or property but his own. Natural rights are therefore not to be confused with the so-called ‘human rights’ of the United Nations’ Universal Declaration of Human Rights of 1948. On the basis of that Declaration I can say that I have rights to life, liberty and property, but not to my life, liberty or property. That is so because in order to guarantee others their ‘human rights’ the political authorities must be able to arrange my and everybody else’s life, liberty and property according to their own estimation of what is feasible and appropriate ‘in accordance with the organisation and resources of each state’. The operational essence of the doctrine is that my ‘human right’ gives the state a legal ground for taxing you and subsidising me, while your ‘human right’ gives it a legal ground for doing the opposite. Both rights together provide it with a legal ground for taxing and subsidising as it sees fit.
From a philosophical perspective the ‘human rights’ of the Declaration are all variations on the Hobbesian theme that human beings have an enforceable ‘right’ to have their needs and desires satisfied at the expense of the life, liberty and property of others — a ‘right’ that can have no place in natural law because its enforcement would entail massive violations of natural rights. The perversion of the notion of natural law that was introduced in the mid-seventeenth century by the famous apostle of the absolute state, Thomas Hobbes, had as its starting point the idea that men have a natural right to anything they desire, even if getting it involves killing or enslaving others. In short, every man’s natural right is to rule the world (if he can) — or, equivalently, injustice is man’s natural right (if he can get away with it). Noting that only chaos can follow if every person were to act according to that ‘right’ not to respect others, Hobbes did not retrace his steps to check the absurd premise of his argument. Instead he went on to argue that the only way out of the unorganised injustice that is man’s ‘natural condition’, is to organise (i.e. monopolise) injustice in the form of the state. Thus Hobbes founded the characteristic philosophy of the modern state, that the basic human right is satisfaction of desire and that the main business of the state is to use political power to determine whose desires shall be satisfied to what extent and at whose expense. Note however that in his system ‘justice’ is nothing more than the consequence of the organisation of a legal monopoly of coercion designed to enforce obedience to the legal directives of the powers that be. Law, right and justice, in the proper understanding of these terms, have no place in that system, yet it is the basis of the ruling political ideology in the West, of its doctrine of ‘human rights’ no less than of its reverence for the political system of democracy.
It may well be true that democracy is the worst of all systems of political rule except for all the others, but it is nevertheless a system in which some presume to have the right to govern the rest regardless of their consent. As such it is still unacceptable from the point of view of natural law as well as incompatible with the political system of kritarchy. The fundamental defect of democracy is not that people vote to determine which individuals shall be their political representatives. The central defect and in fact irreparable defect of democracy is that it embodies the ‘right’ of the representatives to rule over those who voted for them as well as over those who did not. It allows the elected rulers to violate the natural rights of people with impunity, at least if they do so in a proper legal way by specifying in advance and in sufficient detail how it should be done, by which magistrates or officers of the state, where people can complain if they feel their rights are improperly violated, and so on. As in other systems of political rule, there is in a democracy no independent police or judiciary to which people can appeal. A democracy outlaws all independent sources of protection of natural rights as a matter of constitutional necessity, in order to make sure that no natural rights can be invoked against the legal rights of democratic rule.
Democracy is often presented as ‘government by consent’, but that is never more than the consent of a majority — and in many democracies not even that. As a political device democracy is no doubt a great invention. Regular elections provide a rough mechanism for ensuring an alignment of rulers and a sizeable part of the subjects over which they rule. They thereby help to prevent or minimise the violent confrontations and unrelenting repression and exploitation that are permanent risks in other systems of rule. Nevertheless, they are a practice that has no basis in natural law. To understand this, it suffices to ask how a person could lawfully authorise another to do what he himself has no right to do. The question is pertinent, because, to repeat, democracy is a system of political rule in which there is a distinction between the rulers and the rules, and between the legal rights of the rulers and those of the ruled. If you would attempt to do to your neighbours what a democratic government does to its citizens — say tax them, fix their hours of work, force them to accept the money you have printed or to send their children to schools of your choice —, you would very likely (and in any case should) end up in jail. Not even a democracy allows you to do such things. Nor does it allow you to do them in conspiracy with others. But it does allow you to have someone else do them on your behalf and in your name! All you have to do is vote for a ‘political representative’.
The mystery of democracy is that ‘representatives’ are invested with powers the people who empowered them are not (and should not be) allowed to exercise. Of course, the mystery is only apparent. It disappears as soon as we recall the Hobbesian foundation of democracy: there is nothing wrong with injustice as long as it is properly monopolised, and democracy is an appropriate means for doing so. More fundamentally, in a democracy every voter is assumed to have the right to decide who should control the coercive monopoly and rule everybody else in the state. That is obvious in the admittedly unlikely case that you are the only voter to turn up at the polls. Then your vote decides which party should take over parliament and the government — as if you were an absolute ruler picking his counsellors and ministers.
Leaving no room for the idea that human beings are natural persons in a natural world, the current legal and political ideology makes any man or woman an artificial being — a ‘citizen’ — whose very essence is defined and created by the legal rules of the state to which he or she belongs. Within the state human beings as such have no rights, except in so far as some legal authority regulates their existence and freedom. That is why the Universal Declaration in its articles 6 and 15 names ‘a legal personality’ and ‘a nationality’ among the things people have a right to. From the point of view of the Declaration’s underlying philosophy, a legal personality and a nationality — in a word ‘citizenship’ — must be eminently desirable, for they are nothing less than the necessary conditions of legal existence in the state. Without them a person is a nobody. Once we abandon the perspective of natural law for that of legal rule, we must admit that what a person has a right to do or to call his own, depends not on what he is or does, but on his status in the legal order in which he happens to find himself. He becomes an artificial person in an artificial order, like a piece of wood that is assigned different ‘rights and duties’ depending on whether it is used in a game of chess, checkers or backgammon.
The glorification of such artificial legal orders is very common in contemporary legal and political thought, where fiction seems to triumph invariably over reality. Artificial orders are based on artificial or imaginary distinctions and on the neglect of or disregard for natural distinctions. Thus we may think of orders that arbitrarily or systematically refuse to acknowledge certain persons as persons. Other examples of artificial law proceed by defining some or all persons as being in all or some respects ‘part’ of others, to which they are therefore said to belong. Some go so far as to define human beings as parts of non-existent imaginary or fictitious persons. In fact, however, natural persons are not ‘parts’ of other natural persons or legal fictions. They may become members in some association or society, and in that sense become ‘participants’ in its activities, but that does not imply that they are thereby mysteriously transformed in mere ‘parts’ of a person — and it does not imply that the association is a person in its own right.
No matter what the philosophical pretensions behind the constructions of artificial law may be, they all share a common practical implication. They deny the freedom and/or the equality of at least some human persons, and thereby provide a spurious justification for the claim that from the perspective of law some human persons either do not exist at all or exist only in so far as they are ‘represented’ by others. Thus, by denying natural law and the natural distinctions that constitute it, they conjure up an idea of law that makes the non-consensual ‘government’ of one person by another seem ‘lawful’.
It should be sufficiently clear by now that ‘natural law’ is not a question of idle speculation, but of natural fact. In this sense a kritarchy is a political system based on respects for the facts (though not necessarily for the artefacts) of the human world. Respect for natural law is therefore an objective category of human action. Human actions that respect law are lawful and therefore just. Those that do not, are unlawful and unjust.
Justice in the general sense is the art or skill of acting in conformity with law, with due regard for the rights of other persons. In the particular ‘technical’ sense it is the art or skill of discovering rules, methods and procedures that effectively and efficiently provide for the defence and, if need be, fortification and restoration of the law of the human world. The discovery, refinement and systematisation of such rules, methods and procedures are the proper province of jurisprudence as a rational discipline.
In an evolved kritarchy jurisprudence is the business of specialists, jurists, who supply their skills in an open market to individuals and organisations, but also and perhaps primarily to courts of law, police forces and other organisations that are involved in enforcing respect for natural law and helping people to make their actions conform to the requirements of justice. As noted before, in a kritarchy neither the courts of law nor the police forces nor any of the other organisations that make justice their business, have any legal monopoly. Their clientele and membership remain free to shift their demand from an unsatisfactory to a hopefully more satisfactory supplier of justice. Consequently, courts of law and police forces have a strong economic incentive to avoid using violence or other coercive means, say to compel a person to appear in court, unless they have good reason to believe that he is guilty as charged or is obstructing the course of justice and sufficient insurance to cover their liabilities.
Not being above the law, the courts and police forces of a kritarchy run the risk of being charged with unlawful behaviour in another court, if they deprive others of their freedom or other rights when justice does not require it. That other court might be a competitor or a cooperation of several of its competitors. It might also be a parliament, i.e. a representative body that acts as a public guardian of the law. Such a parliament would sit only as a court of law. It does not have the power to govern or to make laws that restrict anybody’s rights. However, it can be an effective agent of justice if it commands sufficient authority to convince the public that the courts of law or police forces that it convicts, are not worthy of the public’s trust (thereby destroying their economic base), or to bring about a collective effort of other organisations of justice to enforce its verdicts against recalcitrant convicts.
Because the courts in a kritarchy need the consent of all parties if they wish to avoid the risk of using violence against an innocent person, they need to offer sufficient guarantees of competence and impartiality. They need to do so both to elicit the cooperation of the accused and defendants, and to assure the plaintiffs and claimants, who initiate the proceedings, that their verdicts are unlikely to be contested in another court. Short of seeking a monopoly by the violent elimination of its competitors, an organisation of justice has no alternative but to build up a solid reputation for justice.
Working out the details, conventions and protocols for an operational efficient system of justice is no mean task. Like every other significant practical undertaking it involves knowledge of the general principles of law as well as experimentation with different types of organisation for the supply of justice. It is the task of applying entrepreneurial creativity to recombine available social, technical, administrative and financial resources and skills so as to improve the outlook for effective justice. It is not likely that this task can be carried out with any consistency within the stifling confines a legal monopoly. On this conviction, the case for kritarchy rests.