The following is excerpted from Hans-Hermann Hoppe’s new monograph entitled “From Aristocracy to Monarchy to Democracy” which is for the most part a transcript from his lecture here (that link will take you to the starting point of the following –so you can hear it in “the Hoppe voice.” You’re welcome). I post this because it is important to understand the historical development of kings so the idea of a natural order, even if it would look different today than back several centuries, can be seen as not something new and idealistic, but rather something old and natural. The idea of conflict resolution, courts, and property protection, are ancient, and it is the almighty state that is “new.” As Hoppe notes, the following is not to be interpreted as the propertarian (property-rights based libertarian order) ideal, but rather to given some idea of how the problems of law and order developed in the past. Also important, it should give a new perspective on the Confessional mention of a civil magistrate. The idea of a civil magistrate can be applied in different ways and in different social orders.
After discussing the principles of original property appropriation and the concept of the first owner of a good either found in nature or produced from other previously owned goods, Hoppe discusses the concept of a demand for dispute resolution in pre-monarchical Europe. Below is Hoppe, with my own comments italicized in [brackets]:
The criteria, the principles, employed in deciding a conflict between a present controller and possessor of something and the rival claims of another person to control the same thing are clear then, and it can be safely assumed that universal agreement among real people can and will be reached regarding them. What is lacking in actual conflicts, then, is not the absence of law… but only the absence of an agreement on the facts. And the need for judges and conflict arbitrators, then, is not a need for law-making, but a need for fact-finding and the application of given law [the principle or ethic that private property is not to be expropriated by others—CJE] to individual cases and specific situations. Put somewhat differently: the deliberations will result in the insight that laws are not to be made but [facts need] to be discovered, and that the task of the judge is only and exclusively that of applying given law to established or “to be established” facts [of the case at hand].
Assuming then a demand on the part of conflicting parties for specialized judges, arbitrators, and peacemakers, not to make law but to apply given law, to whom will people turn to satisfy this demand? Obviously, they will not turn to just anyone, because most people do not have the intellectual ability or the character necessary to make for a quality-judge and most people’s words, then, have no authority and little if any chance of being listened to, respected and enforced. Instead, in order to settle their conflicts and to have the settlement lastingly recognized and respected by others, they will turn to natural authorities, to members of the natural aristocracy, to [what they referred to as] nobles and kings. [Here is being described the natural rising of kings and nobles in the old pre-monarchical Europe, as he will mention below —CJE].
What I mean by natural aristocrats, nobles and kings here is simply this: In every society of some minimum degree of complexity, a few individuals acquire the status of a natural elite [as opposed to the modern, state-granted and artificial crony “elite”]. Due to superior achievements of wealth, wisdom, bravery, or a combination thereof, some individuals come to possess more authority than others and their opinion and judgment commands widespread respect. [It is difficult for our modern minds to picture this natural development —picture a small town or community in which there are some “elder” members who are considered wiser and mature by the community. This concept is despised by the egalitarians today, and those who live in smaller towns may have an easier time picturing what Hoppe is describing].
It is to the heads of such [‘noble’] families with established records of superior achievement, farsightedness and exemplary conduct that men typically turn with their conflicts and complaints against each other. It is the leaders of the noble families, who generally act as judges and peace-makers, often free of charge, out of a sense of civic duty. In fact, this phenomenon can still be observed today, in every small community.
Now back to the question as to the likely outcome of a deliberation among real people about how to resolve the ineradicable human problem of interpersonal conflicts. We can easily imagine, for instance, that there will be general agreement that in every case of conflict one will turn to some specific individual, to the head of the most noble of families, [historically labelled as] a king. But as already indicated, it is unimaginable that there will be agreement that this king can make laws. The king will be held to be under and bound by the same law as everyone else. The king is supposed to only apply law, not make it. And to assure this, the king will never be granted a monopoly on his position as judge. It might be the case that everyone does in fact turn to him for justice, i.e., that he has a ‘natural’ [or “free market”] monopoly as ultimate judge and peacemaker. But everyone remains free to select another judge, another noble, if he is dissatisfied with the king. The king has no legal monopoly on his position as judge, that is. If he is found to make law, instead of just applying it, or if he is found to commit errors in the application of law, i.e., if he misconstrues, misrepresents, or falsifies the facts of a given case, his judgment stands open to be challenged in another noble court of justice, and he himself can there be held liable for his misjudgment. In short, the king may [to those who aren’t familiar with the nature of the State as distinct from a natural order] look like the head of a State, but he definitely is not a State but instead part of a natural, vertically and hierarchically structured and stratified social order: an aristocracy [but not the statist aristocracy envision by the Greek philosophers].
Feudal lords and kings could only “tax” with the consent of the taxed, and on his own land, every free man was as much of a sovereign, i.e., the ultimate decision maker, as the feudal king was on his. Without consent, taxation was considered sequestration, i.e., unlawful expropriation. The king was below and subordinate to the law. The king might be a noble, even the noblest person of all, but there were other nobles and not-so-nobles, and all of them, every noble and every free man no less or more than the king himself was subordinate to the same law and bound to protect and uphold this law. This law was considered ancient and eternal. “New” laws were routinely rejected as not laws at all. The sole function of the medieval king was that of applying and protecting “good old law.” The idea of kingship by birthright was absent during early medieval times. To become king required the consent of those doing the choosing, community of electors was free to resist the king if it deemed his actions unlawful. In that case , people were free to abandon the king and seek out a new one. This brief description of the feudal order or more specifically “allodial” feudalism shall suffice for my purpose. Let me only add this. I do not claim here that this order was perfect, a true natural order, as I have characterized it before. In fact, it was marred by many imperfections, most notably the existence, at many places, of the institution of serfdom (although the burden imposed on serfs then was mild compared to that imposed on today’s modern tax-serfs). I only claim that this order approached a natural order through (a) the supremacy of and the subordination of everyone under one law, (b) the absence of any law-making power, and (c) the lack of any legal monopoly of judgeship. And I would claim that this system could have been perfected and retained virtually unchanged through the inclusion of serfs into the system.
But this is not what happened. Instead, a fundamental moral and economic folly was committed. A territorial monopoly of ultimate judgeship was established and with this the power of law-making, and the separation of law from and its subordination to legislation. Feudal kings were replaced first by absolute and then by constitutional kings.
As the book title suggests, the story goes downhill from there in regards to the rise of the State. The monarchy was horrible for the provision of law and order, and contrary to popular opinion, in some ways the idea of a “public government” or “democracy,” was even worse. For if monarchy is the monopolization of government provision, the democracy is both that monopolization as well as the socialization of the government. In order to understand the entire case for this argument, one cannot avoid reading Hoppe’s most important contribution to political theory: Democracy: The God that Failed. (I should not be interpreted here of preferring a monarchy to a localized republic in regards to comparative governments. But the fact of the matter is that a publicly owned government has certain economic and sociological disadvantages compared to a privately owned one.)
The bolded part above is actually quite profound. These are three concepts which are lacking in today’s state-democracy. While the above is not the libertarian ideal, and the later rise of the industrial revolution and the discovery of the division of labor could have made better the idea of a free market or natural order, it does give us an idea of how much more preferable the institution of law and order was under this model. With the rise of mass capitalism, the provision of courts and arbitrators and the like could have followed the same trend as every other industry. The production of security on the free market though was never actually given a good chance. Most other goods and services since the rise of capitalism have wonderfully benefitted from free market conditions (though the threat of government intervention has always been just around the corner). As the production of goods and services increased and expanded through the Capitalist system in the 18th and 19th centuries, people understood that economic freedom, not government control, was the source of economic prosperity and the wealth of the economy. It is then quite ironic that the theory of the production of security and justice in society would take the opposite path. The State grew in its power and dominion and was the ultimate challenge to the growing influence of the market. The struggle in the modern era, from the time of the American Revolution until the present, is the grand struggle between “Power and Market,” as Rothbard termed it. Two major goods and services that were immediately protected by the state was the production of security/dispute resolution (which are actually two different things), and money/banking.