[an edited version of this has just been published in the (subscription only) New Law Journal and now also at the Halsbury Law Exchange blog]

Like nearly everyone else I have lived most of my life not thinking to question that we need a government in order to create and enforce the law, to preserve the peace and to guarantee contracts. Even as I watched, horrified, through a decade of frenzied legislative activity which sapped all my faith in political government it was difficult to see how we could really do without some legislators.

But it turns out that there has long been a school of thought that says we can have justice, peace and security without state legislators and the apparatus of enforcement and punishment over which they wield a monopoly. Not only that, but that there are reasons to believe it would:

  • produce better justice;
  • provide more responsive protection and efficient, cost effective resolution, both for victims and perpetrators;
  • when change is needed, when opinions alter about what is a crime, more swiftly incorporate such change into the law as practiced;
  • and adjudicate between and reconcile different systems of law, such as religious law.

All without legislators; without, in a word, a state.

These are bold promises indeed. But before I get into describing this miracle and how it might work, perhaps it would persuade some of you to consider it more seriously if we first took a look at why we might want to overthrow what to many appears to be a perfectly adequate current system.

  • State created law is a monopoly.  Indeed, one definition of the state is that it has the monopoly of final arbitration in disputes in a given territory.  Monopolies are generally bad – the state even legislates against them in other areas of life.  They can charge what they like, for whatever quality they decide.  It turns out that it is often slow, expensive and difficult to access if you happen not to be well off or well connected.  And this monopoly of state law outlaws competition with itself.
  • There is an institutional conflict of interest.  This monopoly has jurisdiction in disputes with itself.  The state makes the laws, employs the protection agents, judges and enforcers.  In order for things to be seen to be fair, conflicts of interest are usually frowned upon.  The state itself again legislates against that elsewhere.  And if it doesn’t like something you do, or something you are, it conjures up a new offence so that it can get you next time.
  • This also means it is largely unaccountable.  Whilst the principle of “innocent until proven guilty” is enshrined in the system, nobody is actually personally accountable, most of the time, for their actions.  If there is any compensation paid for a miscarriage of justice, for a law that is eventually shown to do harm, or for a policeman overstepping the bounds of reasonable force, it is not the legislator, policeman or judge but usually the rest of us, as taxpayers, who pay the price.
  • These create perverse incentives.  The system does not need to pay for itself.  When it fails to deliver on the expectations it sets for itself, it forces us to pay more for those services.  If you object, it brands you a criminal and uses its monopoly powers to punish you.  Can you imagine the unique and terrifying power this gives those who get to control this monopoly?
  • As a result it is practically impossible to know the law.  In fact there is every likelihood that this system could find some rule, regulation or law, of which you are completely unaware, to drag you through their monopolistic, incestuous and conflict ridden system and ruin your life, or at least your reputation.
  • And, it usually fails to produce justice.  If you are unfortunate enough to become the victim of crime, the state’s protection agents have already failed you.  Then it is unlikely to find the perpetrator for most crimes.  Even if it does manage that, you have to go through an often long process to know if they got the right person.  And then, if convicted, their penalty bears little relationship to your loss, compensation is derisory and you share the financial burden of keeping your assailant unproductively behind bars

So, I hope you would agree that if we could come up with a system that addresses these and other very serious failings and could also produce all the benefits I listed above, you’d be willing to give it some consideration.  In fact, the alternative is not as alien as you might expect, and aspects of it have been used throughout history and even today.

Many libertarians (myself, I prefer the terms “Market Anarchist” or “Mutualist”) subscribe to the idea of the private provision of security, dispute resolution and restitution produced by competing organisations operating in a free market.  Based on only a few key principles “law” would be “discovered” by arbitrators applying those principles to the case under consideration.  These key principles would also define the limits of action that could be applied by security providers, by investigators and by those who specialise in enforcing judgements.

People and organisations would likely take out a form of insurance, similar perhaps to current day “professional indemnity insurance”, the firms providing which would probably act as brokers, arranging for protection services for their clients, and agreeing between themselves on firms of arbitrators they would call on in a dispute between their clients.  Arbitrators would succeed or fail based on the perceived quality of their rulings and probably also the speed of resolution.  The collection of judgements (since most would be restitutive) could be handled by entrepreneurs acting like current bail bondsmen do in the US.

This insurance need not be expensive either, for those worried about the ability of the poor to get justice in such a system.  At its most basic it may be a neighbourhood based mutual aid society.  After all, if you have a clean record, are unlikely to be a perpetrator of crime, and the costs of any crime against you are loaded onto the actual perpetrator, the premiums need not be onerous, compared with the costs everyone currently shares of financing the existing monopolistic state system.  And if an uninsured person was a victim of crime there are incentives, such as exist today with injury compensation firms, for entrepreneurial organisations to take the case, compensate the victim and recover the restitution through the arbitration system.

How do we derive the few key principles and ensure they are observed in the implementation of the system?  For libertarians, the key principle of justice is freedom for the individual. In natural law terms, based on philosophers such as John Locke, we have property in our own selves and from that in the property we create or acquire with our labour.  The only limits to our freedom are that we cannot use ourselves or our property to impinge on the same rights of others.  This is usually known as the “Non Aggression Principle.”

The implications of this are far reaching.  For instance an individual or security company providing defensive protection cannot initiate aggression on another or their property.  A detective agency would have to be extremely careful, and certain of their evidence, to confront an alleged perpetrator, or in turn their agency could prosecute what would now be an aggressor.  Whilst people could subscribe to arbitration agencies that, for example, shared their dislike of drugs, and promised to seek to ensure their clients were not affected by drugs, in the end, the argument would rest on whose rights to freedom from aggression had been breached.  Even in the course of collecting restitution, enforcement companies would have to take great care not to impinge on the rights of the perpetrator, though there are many who also argue that once someone has aggressed they have given up the right not to be aggressed upon themselves until the balance has been restored through full restitution.

In the end, this is not meant to be prescriptive.  By fostering competition based on efficiency and perceived fairness, all the checks and balances we need can be incorporated, and the market will produce the outcomes people gravitate toward with their patronage.  There would be great incentives for people to co-operate with such a system, since it would be very difficult for alleged perpetrators to get insurance cover and therefore other economic goods such as employment, housing, financial services and so on unless they cleared their name or agreed to some kind of peaceful restitution arrangement.

Outlawry and ostracism are not to be underestimated as effective controls and for those who tried to ignore the system, Hobbes’s idea of life being “nasty, brutish and short” may very well be the reality.  For the rest of us, there is the prospect of real justice without monopoly, conflict of interest, perverse incentive and unaccountability and free from arbitrary legislators enacting new laws by the boatload. [1464 words]

Further reading:

Robert P Murphy, “Chaos Theory” (pdf) for an easily digested introduction to private law and defence.  And my own audiobook version of it here for listening to surreptitiously in court!

Gustav de Molinari, “The Production of Security

Hans-Hermann Hoppe, “Fallacies of the Public Goods Theory and the Production of Security” (pdf) in the Journal of Libertarian Studies.

David D Friedman, “The Machinery of Freedom“, particularly the chapter entitled “Police, Courts and Laws – on the Market

Morris and Linda Tannehill, “The Market for Liberty” (pdf) chapters 6 to 12.

Bruce L Benson, “The Enterprise of Law

…and many papers on individual aspects of private law at the Socrata archive on Analytical Anarchism.

Law without legislators