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Attack Tyranny at Its Weakest Link: Enforcement PDF Print E-mail
Commentary/Politics - Guest Commentaries
Written by Kevin Carson   
Friday, 07 January 2011 09:23

(Editor’s note: For Jeff Ignatius’ response to this guest commentary, click here.)

Liberal goo-goos and “good citizens” of all stripes are fond of saying that “we must continue to obey the law while we work to change it.” Every day I become more convinced that this approach gets things precisely backwards. Each day’s news demonstrates the futility of attempts at legislative reform, compared to direct action to make the laws unenforceable.

The principle was stated most effectively by Charles Johnson, one of the more prominent writers on the libertarian Left: “If you put all your hope for social change in legal reform ... then ... you will find yourself outmaneuvered at every turn by those who have the deepest pockets and the best media access and the tightest connections. There is no hope for turning this system against them; because, after all, the system was made for them and the system was made by them. Reformist political campaigns inevitably turn out to suck a lot of time and money into the politics – with just about none of the reform coming out on the other end.”

Far greater success can be achieved, at a tiny fraction of the cost, by “bypassing those laws and making them irrelevant to your life.”

Johnson wrote in the immediate context of copyright law. In response to an anti-copyright blogger who closed up shop in despair over the increasingly draconian nature of copyright law, he pointed to the state’s imploding ability to enforce such laws. The digital rights management (or DRM) of popular music and movie content is typically cracked within hours of its release, and it becomes freely available for torrent download. Ever harsher surveillance by ISPs in collusion with content “owners” is countered by the use of anonymizers and proxies. And the all-pervasive “anti-songlifting” curriculum in the publik skools, in today’s youth culture, is met with the same incredulous hilarity as a showing of Reefer Madness to a bunch of potheads.

The weakest link in any legal regime, no matter how repressive on paper, is its enforcement.

I recently saw a couple of heartening news items that illustrate the same principle. First, a judge in Missoula County, Montana, complained that it would soon likely become almost impossible to enforce anti-marijuana laws because of the increasing difficulty of seating juries. In a recent drug case, so many potential jurors in the voir-dire process declared their unwillingness to enforce the pot laws that the prosecution chose to work out a plea deal instead. The defendant’s attorney stated that public opinion “is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances ... .” The same thing happened in about 60 percent of alcohol cases under Prohibition.

Public agitation against a law may be very fruitful indeed – but not so much by creating pressure to change the law as by creating a climate of public opinion such that it becomes a dead letter.

Another morale booster is the rapidly improving technology for recording cops, which Radley Balko (a journalist whose chief bailiwick is police misbehavior) describes in the January issue of Reason magazine. Miniaturized, unobtrusive video cameras with upload capability can instantly transmit images for storage off-site or stream content directly to the Internet – which means that the all-too-frequent tendency of thuggish cops to seize or destroy cameras will result only in video of the very act of seizure or destruction itself being widely distributed on the Internet. “Smile, Officer Friendly – you’re on Candid Camera!”

The practical implication, according to Balko, is this: “Prior to this technology, prosecutors and the courts nearly always deferred to the police narrative. Now that narrative has to be consistent with independently recorded evidence. And as examples of police reports contradicted by video become increasingly common, a couple of things are likely to happen: Prosecutors and courts will be less inclined to uncritically accept police testimony, even in cases where there is no video, and bad cops will be deterred by the knowledge that their misconduct is apt to be recorded.”

As such technology becomes cheap and ubiquitous, police will increasingly operate in an atmosphere where such monitoring is expected – and feared – as a routine part of their job. Even the most stupid and brutal of cops will always carry, in the backs of their minds, the significant possibility that this might be one of the times they’ve got an audience.

New technology, empowering the individual, will soon deter cops in a way that decades of civilian-review boards and police commissions failed to achieve.

So the goo-goos have it backwards. Don’t waste time trying to change the law. Just disobey it.

Kevin Carson is a research associate with the Center for a Stateless Soceity (, at whose Web site this article originally appeared.

Comments (1)Add Comment
written by Kevin Carson, January 08, 2011
Thanks for picking this up, and to Jeff Ignatius for the comments.

If I implied "only barely" that we should disobey only the laws that violate our moral principles, it was an oversight on my part. I certainly don't suggest that we do things we regard as immoral simply because the law forbids them. A law commanding moral conduct is moot insofar as it commands what we choose to do anyway. We should do what is moral and what makes sense from the standpoint of social cooperation, and treat the law as irrelevant in that regard.

Perhaps I should have included at least a brief summary of the anarchist argument against "intellectual property" in my column. But so many of my columns have been against IP and so much of my regular readership are anarchists of various stripes who take the illegitimacy of IP for granted, that I left it out for reasons of space (C4SS writing guidelines include word-limit constraints for ease of print pickup).

My arguments against "intellectual property" are stated, at length, in a C4SS quarterly research paper: "Intellectual Property: A Libertarian Critique."

They can be summed up by saying that "intellectual property" is an artificial property right. For a brief discussion of artificial property rights, see "Competition is Theft" and "Yes -- The Rent Really is Too D--- High."

As Mr. Ignatius says, IP is a property protection. So was the slave-owner's "property" in the labor of another human being. So was the feudal landlord's "property right" in collecting tribute from those who worked land that, by the Lockean standard of appropriation by admixture of labor, was the rightful property of those working it.

Legitimate property rights are a way of accommodating natural scarcity in a free market, and are a way of rewarding the rights-holder for contributions to production. Artificial property rights create scarcity where it does not naturally exist (as in the case of digitally encoded information, which is non-rivalrous and has no marginal cost of reproduction), and enables the rights-holder to exact tribute for not obstructing production. As Henry George Jr. once put it, artificial property rights are a way of collecting rent by controlling access to natural opportunities.

A huge part of the price we pay for manufactured goods (and hence of the hours we work to pay for them) consists, not of labor or materials, but of embedded rents on artificial property rights like patents and copyright. Tom Peters once celebrated the 90% of the price of his new Minolta camera he once estimated came from "intellect" rather than labor and materials. So in a genuine free market, where "intellect" cannot be owned, the pressure of competition would -- by his estimate -- drive down the price of his camera by 90%. The other nine-tenths of the time we work to earn the money to buy it is the equivalent of what the feudal peasant paid to his overlord for the "privilege" of eating the bread that he produced with his own hand.

Artificial property is a way of erecting a toll gate between the producer and natural opportunities, so that the producer is compelled to feed a rentier in addition to herself.

We market anarchists are dedicated to a society of peaceful exchange without artificial scarcities, artificial property rights, or privilege, in which 100% of the produce of labor goes to labor without any of it going as rent to illegitimate landlords, usurers, copyright- and patent-holders, and bureaucrats.

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