Article published in Liberty, July 1995
In the town where I live -- Outremont, a wealthy suburb just adjacent to downtown Montreal -- a kind of civil disobedience has spread to even higher levels than elsewhere in Montreal: drivers don't obey stop signs. They barely slow down, give a quick look left and right, and speed on. I have often reflected on this phenomenon, not only because I risk being run down while jogging, but because it raises some interesting questions about civil disobedience.
There is something tonic in observing a large number of people act as if a particular law did not exist. Suppose they made laws, and nobody obeyed. Suppose they sent out income tax forms, and nobody returned them. Learning to say non serviam to the state has become a crucial necessity.
Indeed, blind obedience to formally approved laws is one of modern America's puzzling features. One understands why felonies that carry a high probability of heavy penalties (say, insider trading) are not openly broken. But most Americans seem to comply blindly with petty prohibitions, such as those that have thrown smokers, those modern niggers, out of "public places" (most of which are actually private places open to the public). This may not be true in southern Louisiana or in Montgomery County, Indiana, but university professors have told me that they do not dare to smoke even in their own offices. In many states, traffic on three-lane highways crawls at African trail speed. In other countries -- say, France, and to a certain extent, Quebec -- such petty laws are much more difficult to enforce because people don't cave in to whatever the state says.
Is it an act of civil disobedience to run a stop sign? Civil disobedience means a conscious refusal to obey laws or government commands when they are deemed unjust. As Henry David Thoreau wrote in Civil Disobedience: "It is not desirable to cultivate a respect for the law, as much as for the right." If injustice is more than just "friction" in the "machine of government," if it "requires you to be the agent of injustice to another, then, I say, break the law." Thoreau himself refused to pay taxes to finance a government that supported slavery and waged war with Mexico.
It is not clear that stop signs are unjust, that they violate anybody's rights. This brand of traffic laws creates, or embodies, expectations that make life easier. It reduces the probability of accidents at little cost. It decreases information requirements: when you have the right of way, you do not have to watch constantly for somebody not yielding. French drivers, for instance, drive fast, change lanes, and will engulf in any interstice to gain a few meters. Yet they follow so religiously the yield-to-the-right rule that you can drive virtually without looking on your left-hand side. Outremont drivers don't follow any rule, so you don't know who has the right of way, and the bullyest wins.
Well, sometimes. At the time I was working on this article, one of my sons gave me a ride from the office. While driving home, we were probably, as usual, denouncing the state when my son dutifully made his first stop entering Outremont. The car following us screamed to a halt and nearly bumped us, as the guy could not imagine we would actually stop. Which we did again for all the following stops.
Right-of-way rules don't have to wait for legislation to come into force. The application of game theory to social interaction has shown how, under certain conditions, it is in everybody's interest to abide by rules, and that such rules will spontaneously evolve and gain force without the state's coercive powers. Indeed, one of the main illustrations of spontaneous solutions to "Prisoner's Dilemma" problems is how it is in everybody's interest to drive on the right-hand (or left-hand) side of the road, once it is perceived that more than half of the drivers follow the rule. But the simple fact that an evolved (or would-be-evolved) rule has been given the force of law does not diminish its usefulness. Breaking it only because it's a law undermines an efficient rule on which other people count; it violates other people's expectations.
An expectation, of course, is not identical to a right. The fact that most people expect you to pay "your" income tax does not give them a right to force you to do it. If you have a right to your income, any expectation that runs counter to that right is null and void. Yet many expectations do not contradict rights. Some are mere social rules that facilitate the exercise of individual rights. Other expectations may be intimately linked to the foundations of individual rights if, as Robert Sugden argued, moral rights derive from expectations grounded in the nature of things: property rights, for instance, may embody expectations based on the natural right of the first occupant. Breaking a rule that stems from either right-consistent or right-creating expectations only because it happens to be a state law does not lead to anarchy, but to random disorder. One does not commit murder only because the state forbids it.
Thoreau understood well the difference between resisting unjust laws and cheating on your neighbors' legitimate expectations. "I have paid no poll tax for six years," he wrote. "I was put into jail once on this account, for one night." But he adds: "I have never declined paying the highway tax, because I am as desirous of being a good neighbor as I am of being a bad subject." When he visited Quebec City in 1850, he was surprised to meet so many soldiers in the streets, "all passengers giving way to them, even the charette-drivers stopping for them to pass." There is a difference between not respecting a neighbor's right of way, and running down a soldier who has not yielded to you.
Whether or not breaking a law amounts to civil disobedience depends both on the nature of the law and the purpose of the violator. Individuals operating on the black market or even driving fast but carefully on the freeway may be conscious of violating unjust, or at least stupid, laws. I suspect that people who disobey stop signs, though, seldom feel that they are resisting an unjust law. Without conscious resistance on the one hand, and an unjust law to resist on the other hand, there can be no civil disobedience -- at least in the moral, Thoreauvian sense of the word -- only petty disobedience.
It might be that petty disobedience serves as a psychological outlet for people obliged to yield continually before more serious infringements of their liberty, and who have interiorized their slavery to the point of thinking that liberty means violating stop signs or cheating their neighbors. In Outremont, you can sometimes see in the drivers' defiant faces what a great statement of individual sovereignty they think they are making by shifting in second gear. Now, these same people, who are heroically risking a tiny probability of a $100 fine and three points off their driver's license, would not dare carry a revolver in their car, which would make them liable to a felony and a 10-year jail sentence. What a paradox! A peaceful citizen carrying a gun does not impose any cost on third parties -- he actually creates a positive externality through crime deterrence -- while shooting a stop sign endangers the welfare of others.
In Outremont, even police cars often don't make full stops. One explanation is that we have good cops who are just like ordinary townspeople and will substitute individual judgement for blind obedience when they have a chance. This explanation is wanting. For one thing, the cops are not really townspeople, since all local police forces were legally disbanded in the '60s and replaced by an impersonal metropolitan police. Furthermore, the same cops who cheat on stop signs dutifully carry out orders to ticket others who run stop signs. More seriously, they will also arrest people with illegal, unregistered, or just "unlawfully stored" firearms, as well as honest citizens using legal guns in self-defense. A better explanation is that we have bad cops with little judgement, who do not believe in rules or laws but only obey direct orders.
One must not discount the sheer inefficiency of the state, which also has some bearing on the stop sign question. As Montesquieu said, useless laws weaken necessary ones. In Outremont, virtually all intersections without traffic lights have stops on all four corners. Presumably, this stems from a good intention: slowing down the traffic. Or perhaps it is just that, in case of doubt, the bureaucrat will issue four commands instead of two. In any event, four-corner stops arouse the free-rider instinct: if the other guy stops anyway, why should I? It would not be the first time that state processes not only impede the emergence of private solutions to coordination problems, but also impose counterproductive solutions.
Knives, Forks, and the Economics of Disobedience
Ordered anarchy, suggests James Buchanan in The Limits of Liberty, works only when people -- or at least most people -- abide by rules. When they don't, everybody yearns for Leviathan. Using theories of spontaneous social order, a good case can be made that anarchy would foster the development of the very rules that make it workable. These rules are not only the ones that define, and draw the limits of, individual rights: they probably also include evolved rules of etiquette. In a sense, anarchy can only work when people hold their spoons and forks correctly.
In this perspective, violating stop signs looks more like antisocial, anti-anarchist behavior. Even in a minimal state, even in anarchy, there would exist basic rules of conduct that would take their force from the fact that everybody, or almost everybody, understands or accepts their role in sustaining a free society and follows them. Should such a rule happen to obtain in our statist society, it is among those to be retained, not discarded.
The only way out of this conclusion would be to argue that any lawbreaking is good per se, as it will bring down the statist system and move us toward anarchy. But such lawbreaking should be done consciously, in a Thoreauvian way: "I, Henry Thoreau, do not wish to be regarded as a member of any society which I have not joined ... It is for no particular item in the tax bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually." With petty cheating instead of principled civil disobedience, one wonders what kind of people would crawl, crooked and crippled, into the light of liberty.
Consider black markets for, say, smuggled cigarettes. Having been a customer myself, I know how economically useful these markets are. In Canada, they have even forced governments to retreat on tobacco taxes (until the government eventually decides to increase the taxes again). There is no question that such black markets do not violate anybody's rights or legitimate expectations, and that they provide a useful built-in restraint against Leviathan. Both their morality and economic efficiency would therefore appear to be unquestioned. Idem for tax evasion. But then, consider their dynamic effects on moral character and the foundations of a free society. Is it not possible that people who, in self-defense, learn to cheat and hide in their public dealings will carry this morality to their private affairs?
One major piece of empirical evidence suggests a positive answer. The Soviet empire was able to survive so long because of black markets and other forms of petty disobedience. Many economists (including myself) assumed that the crumbling of the system, especially in the context of widespread calls for economic freedom, would foster immediate economic growth and individual liberty. This is obviously not happening. The standard economic explanation is that these people lack the basic institutions needed for a functioning market economy. Local tyrants took this to mean that they had to establish an income tax system and create Western-style regulatory agencies. But the lack of social institutions means more than this: it means that individuals used to circumventing rules that always worked against them have simply not learned to follow the basic rules that make an ordered anarchy possible.
Indeed, one of the most deleterious effects of state power in our time has been to undermine spontaneous morality, honesty, openness in social relations (think about sexual harassment), and individual responsibility. The state, supposedly required to provide public goods allegedly unavailable on the market (like public protection), has been the grave-digger of the main -- and perhaps the only real -- public good: an enlightened, independent, and moral populace.
Knowing to Disobey
If we obey, we all become slaves in the name of the system. If we disobey, we will all become Eastern Europeans when the system crumbles. Happily, this dilemma does not exhaust the alternatives. If petty disobedience is a necessary evil -- sometimes justifiable, sometimes not -- real, principled, Thoreauvian, civil disobedience to major tyrannical laws is a positive virtue and should be promoted. One of André Thirion's heroes, at the end of his play Défense de ..., states a great maxim: "Savoir désobéir -- Knowing [how and when] to disobey." There are things that a free man will not mind obeying, if only because he has a moral duty or contractual obligation to do so. But he will disobey state commands that violate his sovereignty -- "cost what it may" said Thoreau.
Up to a point, the state has one useful feature: it provides a locus for disobedience. The state should exist (if it should exist at all) to be hated. Thoreau talks about the "very few -- as heroes, patriots, martyrs, reformers in the great sense, and men -- [who] serve the state with their consciences also, and so necessarily resist it for the most part." In this perspective, libertarianism may be better conceived as a discovery process than as an ideal state of the world.
After having been released from his night in prison, Thoreau was soon, as he said, "in the midst of a huckleberry field, on one of our highest hills, two miles off, and then the State was nowhere to be seen." Wouldn't it be nice today to know of places where the state is nowhere to be seen? Suppose that the size of the state was cut only in half. This would still not be paradise; many of the libertarian criticisms of the state, from Locke to Spooner, would still hold; and ways would still be needed to keep Leviathan in check. But in the meantime liberty would have increased greatly. Spaces of liberty would appear with the state nowhere to be seen. We could then support many small irritants, and hate the state, without feeling everyday threatened in our basic liberties.
Although I am not a Thoreauvian scholar, I think the Walden philosopher would not have violated stop signs in Outremont. Such petty, egoistic, cynical, wrong-headed, and questionable disobedience leads in the wrong direction. Driving 15 or 25 miles an hour above the speed limit on freeways (as people casually do in Quebec) is more ethical and more economically efficient. Black markets and tax evasion are one notch higher, although they may also carry more long-term moral hazards. All this cannot replace the grand, principled, and efficient civil disobedience Thoreau was advocating.
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