Draft: Are Randians Dogmatic on the Production of Law?

 

Are Randians Dogmatic on the Production of Law?

Objectivist Randians present themselves as champions of reason, logic, and empirical evidence. But when it comes to one specific topic—the private production of law and justice—they exhibit a selective blindness that contradicts their own epistemological principles.

The central dogma: Ayn Rand insisted that government must have a monopoly on retaliatory force, including police, courts, and defense. For her, "objective law" requires a single state legislator to codify written norms. Competition between defense agencies or private judicial systems would cause, she argued without evidence, "perpetual civil war" (The Virtue of Selfishness, "The Nature of Government").

The problem: Legal history completely refutes this claim. The most successful and enduring legal systems in the West were not created by politicians writing statutes, but rather emerged spontaneously through decentralized competition:

1. English Common Law (11th-19th centuries): Private and manorial judges competed for clients, generating precedents through resolution of concrete cases. There was no "central legislator" until Westminster (19th century). Result: Legal foundation of Anglo-Saxon capitalism (Berman, Law and Revolution, 1983).

2. Medieval Lex Mercatoria: European merchants created private arbitration tribunals without the State. Rules emerged from custom and competition between courts. Lasted 500+ years, facilitating cross-border commerce without civil wars (Benson, The Enterprise of Law, 1990).

3. Celtic Ireland (650-1650): Completely private Brehon Law system. Judges (brehons) competed by reputation, with no coercive power. One thousand years of stability until English invasion (Peden, Property in Celtic Irish Law, 1977).

4. Free Iceland (930-1262): Alþingi without central executive. Individuals chose private courts (goðar). 332 years without state army or police (Friedman, Private Creation and Enforcement of Law, 1979).

5. Roman Law (republican period): The ius civile was not legislated; it emerged from responsa prudentium (opinions of private jurists) and praetors competing to innovate procedures (Stein, Roman Law in European History, 1999).

The irony: Rand venerated Roman Law and Common Law as foundations of Western civilization, ignoring that both were systems of private norm production, not state monopolies.

Modern evidence: Bruce Benson documented in The Enterprise of Law (1990) how private systems (international commercial arbitration, private security, even dispute resolution in stateless communities) work better than state judicial monopolies: faster, less costly, more consistent. David Beito showed in From Mutual Aid to the Welfare State (2000) how private fraternal societies provided "governmental" services (hospitals, insurance, pensions) more efficiently than the State.

Conclusion: When Randians face this massive historical evidence, they don't respond with arguments; they repeat the dogma. They accuse critics of "utopian anarchism" without refuting concrete historical cases. They invoke "need for objective law" without explaining why political monopolies produce it better than judicial competition, contradicting all evidence.

Final paradox: Many Objectivists are of Jewish ancestry. The Hebrew Bible (Shoftim, Judges) describes precisely a decentralized system of judges without a central legislator, which functioned for centuries before the monarchy. Rand rejected this biblical model... without rational justification.

Are they dogmatic? When they ignore centuries of historical evidence contradicting their political theory, yes. They are not as "for Reason" as they proclaim.

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Are Randians Dogmatic? The Dogma of Judicial Monopoly (1,500 words)

Introduction

Objectivist Randians define themselves by an unwavering commitment to reason, Aristotelian logic, and respect for the facts of reality. Ayn Rand wrote in Introduction to Objectivist Epistemology (1966):

"Reason is man's only means of acquiring knowledge... There is no substitute for reason, no means of deriving knowledge except through sense perception and logical process."

However, when it comes to one specific topic—the production of law and administration of justice—Randians exhibit selective blindness toward historical evidence that directly contradicts their positions. This essay examines the Objectivist dogma about state judicial monopoly and demonstrates that, objectively speaking, Randians reject massive empirical evidence when it doesn't fit their preconceived conclusions.

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The Dogma: State Monopoly of Justice

Ayn Rand was explicit: government must have an exclusive monopoly on the retaliatory use of force. In The Virtue of Selfishness ("The Nature of Government", 1963), she argued:

"The use of physical force, even in self-defense, cannot be left to the discretion of individual citizens... If society is to be free, the government must have a monopoly on the use of retaliatory force."

Premises of the Randian argument:

1. "Objective law" requires written codification by a central legislator.
2. Competitive private judges would cause endless conflicts (each applying "their own law").
3. Only a judicial monopoly can guarantee consistency in norm application.
4. Without monopoly, there would be "perpetual civil war" between rival defense agencies.

Fundamental problem: These claims are empirical assertions about the real world, not a priori logical deductions. Therefore, they must be tested against historical evidence. And when we do this, each premise is refuted by the data.

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Historical Evidence: Successful Judicial Systems Without State Monopoly

1. English Common Law (11th-19th centuries): Judicial Competition, Not Legislation

The legal system underpinning Anglo-Saxon capitalism was not created by parliaments writing statutes. It emerged through competition between courts:

Origin (1066-1300):

• Manorial, mercantile, ecclesiastical, and royal tribunals competed for jurisdiction.
• Clients chose which court to use based on convenience, cost, and reputation (Berman, Law and Revolution, 1983).
• Rules emerged from precedents (stare decisis), not central legislation.

Key characteristics:

• There was no "supreme legislator" until Westminster Parliament (13th century), which initially only ratified existing customs.
• Judges innovated by creating new writs (procedures) to attract cases (Milsom, Historical Foundations of the Common Law, 1981).
• Result: A coherent, predictable, and adaptable system that lasted 800 years without collapsing into "war of all against all."

Comparison with continental systems:

• Codified Roman Law (Justinian, 6th century): Imposed by emperor, rigid, collapsed with Empire.
• Common Law: Flexible, evolutionary, survived revolutions and wars.

Irony: Rand admired Common Law as the foundation of Anglo-Saxon liberty, ignoring that it was a system of decentralized private norm production, exactly what she declared impossible.

2. Medieval Lex Mercatoria (11th-16th centuries): Commercial Law Without the State

European merchants created a completely private judicial system to resolve cross-border disputes:

Structure:

• Arbitration tribunals at commercial fairs (Champagne, Bruges, Lübeck).
• Judges elected by merchants, without state coercive power.
• Enforcement: Ostracism (merchants who didn't comply with rulings were excluded from future fairs).

Emergent rules:

• Customs codified in Consolato del Mare (maritime law), Lex Mercatoria (contracts).
• Consistency achieved through repeated arbitration and judges' reputation, not monopoly.

Duration: 500+ years without wars between rival courts (Benson, The Enterprise of Law, 1990).

Evidence of superiority:

• Merchants preferred Lex Mercatoria over royal tribunals because it was faster, cheaper, and more predictable.
• Facilitated Commercial Revolution (1000-1500), the foundation of European capitalism.

Question for Randians: If Lex Mercatoria caused "endless conflicts," why did it last 500 years and create unprecedented prosperity?

3. Celtic Ireland (650-1650): One Thousand Years Without State Judiciary

The Irish Brehon Law system is the most extreme case of private justice:

Characteristics:

• Zero state coercive power. Judges (brehons) were private arbitrators without capacity to execute sentences by force.
• Enforcement: Reputation + sureties (guarantors who promised to fulfill rulings).
• Total competition: Individuals freely chose which brehon to use (Peden, Property in Celtic Irish Law, 1977).

Legal complexity:

• Extensive legal codes (Senchus Mór, Book of Aicill) as sophisticated as Roman Law.
• Rules on property, contracts, damages, family, inheritance.

Result: One thousand years of functioning (650-1650) until English conquest imposed Common Law by force.

Direct refutation of Rand:

• There was no "perpetual civil war." Ireland had conflicts (Viking invasions, clan disputes), but not because of judicial competition.
• Law was predictable and objective (written codes) without central legislator.

4. Free Iceland (930-1262): Republic Without Executive

The Þjóðveldið (Icelandic Commonwealth) operated 332 years without central government:

Judicial system:

• Alþingi (annual assembly) where individuals presented cases.
• Goðar (chieftains) functioned as competitive private judges.
• Clients chose which goði to follow (could change annually).

Enforcement:

• No police or army. Sentences were executed through support of goðar or regulated self-help.
• Ostracism (outlawry) for serious crimes.

Evidence of functionality:

• Iceland had a lower homicide rate than continental Europe during this period (Friedman, Private Creation and Enforcement of Law, 1979).
• System collapsed not due to "judicial conflicts," but external Norwegian invasion (1262).

Lesson: 333 years without a State, without chaos. Judicial competition did not generate civil war.

5. Republic of Cospaia (1440-1826): Anarchic Micro-nation

Less known but revealing case:

Origin: Cartographic error left Cospaia (0.3 km²) without a sovereign (neither papal nor Florentine).

Structure:

• Zero formal government. Families resolved disputes through arbitration.
• Economy: Tobacco smuggling (prohibited in neighboring States).

Result: 386 years of functional anarchy until voluntary annexation to Tuscany (1826) due to external economic pressure, not internal collapse.

6. Republican Roman Law: Precedent, Not Legislation

Even the system Rand most admired—Rome—didn't work as she believed:

Republican Period (509-27 BC):

• Ius civile emerged from responsa prudentium (opinions of private jurists like Quintus Mucius Scaevola).
• Praetors innovated procedures annually (edictum), competing for reputation.
• Twelve Tables Laws (450 BC) were codification of existing customs, not legislative creation.

Imperial Period (decline):

• Emperor monopolized legislation (constitutiones).
• Law became rigid, arbitrary.
• System collapsed with Empire (476 AD).

Lesson: Rome prospered under decentralized private law production; collapsed under imperial monopoly.

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Modern Evidence: Bruce Benson and David Beito

Bruce Benson: The Enterprise of Law (1990)

Benson documented contemporary private judicial systems:

1. International commercial arbitration:

• ICC (International Chamber of Commerce): Resolves 20,000+ disputes/year without recourse to state tribunals.
• LCIA (London Court of International Arbitration): Preferred by companies over national courts.
• Advantages: Speed (6-12 months vs. 3-5 years in state courts), lower cost, greater consistency.

2. Private security in the U.S.:

• Private guards: 1.1 million vs. 700,000 public police officers (2020).
• Companies prefer private security because it responds to market incentives, not bureaucratic ones.

3. Dispute resolution in stateless communities:

• Somalia (1991-2006): After state collapse, Xeer (customary law) maintained order in pastoral regions.
• Homicide rate in Xeer areas: Lower than South Africa with functioning State (Powell et al., Journal of Comparative Economics, 2008).

Benson's conclusion: Competition generates better law than state monopoly in consistency, efficiency, and legitimacy.

David Beito: From Mutual Aid to the Welfare State (2000)

Beito documented how private fraternal societies (Odd Fellows, Masons, ethnic lodges) provided "governmental" services in the U.S. (1890-1920):

Services provided:

• Hospitals: 35% of hospital beds were from fraternal lodges (1920).
• Health insurance: 30% of workers covered by mutual aid societies (vs. 0% by government).
• Pensions: Lodges paid benefits to elderly/widows.
• Arbitration: Disputes between members resolved internally.

Result: Cheaper, more efficient, more personal than later state services (Medicare, Medicaid).

Decline: Not due to market failure, but state regulation that prohibited competition (e.g., capital requirements for insurance excluded small mutuals).

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Randian Silence: Dogma vs. Evidence

When this massive historical evidence is presented to Objectivist Randians, typical responses are:

1. "Those systems weren't truly anarchic" (moving goalposts)

• Ireland and Lex Mercatoria objectively lacked state judicial monopoly.
• Randian response: "But there were shared customs" (precisely the point: objective law can emerge without central legislator).

2. "They were small/primitive societies" (ad hoc)

• Lex Mercatoria operated across all of Europe (not small).
• Common Law governs 2.5 billion people today (Commonwealth).

3. "They eventually collapsed" (post hoc ergo propter hoc)

• Lex Mercatoria lasted 500 years (longer than any modern state code).
• Ireland collapsed due to external invasion, not internal judicial failure.

4. "We need objective written law" (begging the question)

• Ireland had written codes (Senchus Mór).
• Common Law has written precedents.
• Unanswered question: Why does state monopoly produce more "objective" law than competition?

5. Total silence:

• Many Randians simply ignore the evidence, repeating Rand's mantras without engaging with data.

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The Jewish Irony

Many prominent Objectivists (Leonard Peikoff, Harry Binswanger, Yaron Brook, even Rand herself) are of Jewish ancestry. Irony: The Hebrew Bible describes precisely the system Rand rejected:

Book of Judges (Shoftim):

• Period of the Judges (1200-1050 BC): Israel operated without a king, without central legislator.
• Judges (shoftim) were charismatic leaders who resolved disputes ad hoc.
• Result: 200 years of functioning (unstable, but functional) until Saul's monarchy.

Biblical preference: The prophet Samuel warns against monarchy (1 Samuel 8:10-18), preferring a decentralized system of judges.

Question: If the God of the Old Testament (whom Randians reject) preferred decentralized judges over royal monopoly, and empirical history validates this preference, why do Randians dogmatically defend the opposite?

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Conclusion: Selective Dogmatism

Definition of dogma: Belief maintained regardless of contrary evidence.

Evidence of Randian dogmatism:

1. They ignore 2,000+ years of legal history that refutes their theory.
2. They offer no explanation for why private systems (Common Law, Lex Mercatoria, Ireland, Iceland) functioned for centuries.
3. They reject modern arbitration that demonstrates judicial competition's superiority.
4. When confronted, they repeat mantras without engaging with data.

The fundamental contradiction:

• Rand on epistemology: "Reason has no dogmas" (For the New Intellectual).
• Rand on justice: "Government must have a monopoly" (assertion without evidence).

Verdict: On the specific topic of law production and justice, Randians exhibit classic dogmatism. They subordinate massive historical evidence to preconceived conclusions. They are not as "for Reason" as they proclaim when reason contradicts Rand.

Ironic corollary: Roy Childs Jr. used exactly this historical evidence to refute Rand in his 1969 letter, demonstrating that anarcho-capitalism is more consistent with Objectivist premises than minarchism. Rand never responded intellectually; she only excommunicated him. The movement she created repeats her error.