I will now address an idea that surprises many people at first, (myself included) but actually makes a lot of sense once explained:
How can we have law without the State?
For this blog I am drawing on the works of Murray Rothbard, David Friedman, and various legal systems that have existed throughout history.
The two men I mentioned drew upon previous legal systems themselves. They didn't adhere to any one system or another, but rather took several ideas from each.
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| Murray Rothbard |
I highly recommend this book. It's around 300 pages or so, pretty easy to read, and broken up well enough so that it can be picked up and put down easily.
Some of his other works are a bit more grueling, but this is pretty easy for a lay audience.
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| David Friedman |
David Friedman currently teaches law at Santa Clara University.
It's amazing to me, that a man who went from earning degrees in theoretical physics, switched to economics, and ended up teaching law, despite not having a degree in it.
Legal Systems of the past, from around the world:
I will now talk about several legal systems that have existed in other countries during different time periods. (Although the Amish one still exists.)
"Saga era" Iceland:
This was perhaps one of the systems that influenced Dr. Friedman the most.
It's very intriguing, because the pagan Vikings were known for brutality, and yet this system produced a pretty peaceful society. It's also amazing to me, how a society could achieve the law through voluntary means.
This society existed roughly from the tenth to the thirteenth centuries. Many Vikings fled Norway for "greener pastures" in recently discovered Iceland, as well as England, Scotland, and elsewhere.
Iceland was divided into quarters, with a total of nine sections in them called "godords".
Each "godord" was ruled by a single man, a "godar" who was originally one of the leaders that brought the Vikings over on the ships. His position was normally hereditary, but could also be purchased for a fee.
What was interesting here, was that loyalty to a godar was voluntary.. If one wanted to leave living under a certain godar, they could do so. They could swear loyalty to another.
In return for pledging loyalty, they had to serve the godar in his conflicts. The godar would also serve as their lawyer in court.
There was a "supreme court" called a "Varthing", which was made up of 36 judges.. The judges were picked from amongst a godar's population, with each godar sending 4 judges to the court. The final decision was based on majority vote of those 36 judges.
This legal system was very strict, and operated under a torte law system.
The way this worked, was that if you committed a crime, you had to pay a certain compensation to the aggrieved party. If you couldn't pay, you had to agree to work for a certain time, until the debt was paid off.
If you couldn't pay, or refused to work, you had to leave Iceland. If you didn't, you were branded an outlaw, and could be killed legally.
Now, according to the "sagas", (writings about this period) things were pretty peaceful here. There were armed conflicts of course, but they were rarer than in mainland Scandanavia.
It's unclear why this system fell.. It's believed that members of it were bribed by outsiders who wanted to take control of Iceland, so they turned on their brethren.
Renaissance Italy
I'm not going to tak so much about the legal system here, but rather the political system.
Renaissance Italy was made up of multiple city states, which were the wealthiest in Europe. This is in fact, where the Renaissance began.
Records from that era indicate the this area was peaceful, because the various city states were independently ruled, but still traded and had good relations amongst each other.
This kept the peace. Genoa wouldn't want to go to war with Venice, because they were trading partners.
When conflicts did arise, they were usually between wealthy families. Those families hired mercenaries to do the fighthing for them.
Think of "Romeo and Juliet"
There weren't major drafts of the population to fight, and inter-State wars that cost millions of lives.
Amish law:
The Amish are an offshoot of the "Anabaptists" who were made famous for baptizing their converts as adults. The name "Anabaptist" means "one who baptizes again".
While this is far more accepted today, in the past it was considered heresy. You were supposed to have been baptized as a baby.
They were heavily persecuted in the 16th and 17th centuries, but fled to Pennsylvania where they were eventually accepted. The Amish, Mennonites, and Hutterites are the "spiritual successors" to them.
What I like about the Amish law is that because you can choose whether or not to be baptized, you can essentially decide for yourself if you want to live under Amish law.
As I think most reading this will know, when Amish children reach a certain age, they can either go out into the world... and never come back. Or stay, and continue to live under Amish law.
What I like about this system, is that it gives the person a choice as to which laws they want to live under.
The Amish for example, don't pay into or receive Social Security, because it goes against their beliefs to collect insurance. They fought a Supreme Court case to make this happen.
I think that the idea of being able to opt out of things like this is a great idea, and aspects of it could be applied elsewhere.
Private Property Rights
I feel that this is an important topic to address, because it is largely misunderstood.
People hear the term "private property rights" and assume that it refers to the "rights of private property."
Of course, that sounds silly... Most people believe that people have rights, not property.
Private property rights are the rights of people in regards to property.
"Why do we need private property rights?"
There are two main reasons for this:
1) We live in a world where resources are limited. There's not enough of everything, to satisfy everyone.
I like the analogy that Thomas Sowell provided for this:
Think of beachfront property.
How many people want to leave on the beach, and how much beachfront is available?
There clearly isn't enough to satisfy everyone, which is why it's so expensive.
The only other solutions would be to divide it up into ridiculously tiny sections, or to dole it out based on political connections... and I highly doubt that anyone wants that.
2) Different people have different ends, especially when you consider the reason listed above.
There's so much oil on the Earth.. how do we decided what is the best use for it? And who puts it to that best use?
Should it be made into plastic, petroleum jelly, gasoline, rubber, etc?
The competing interests bid up the price, since they all want it for different things.
A society where those things are determined by mutual, voluntary exchange, has been proven historically, to be the most efficient way in which to decide that.
Private arbitration
The idea of agencies outside of government bodies laying out law sounds outlandish to most, but it really isn't.
Private merchants have used private arbitrators since the around the time of the American Civil War, especially in England.
When merchants had a dispute, it was more efficient to go to a private arbitrator than to the government. There were numerous arbitrators, so a merchant had their pick.
Two merchants usually agreed up an arbitrator with a solid reputation.
The fact that arbitrators were competing amongst each other for clients kept them honest, because once an arbitrator was revealed to be corrupt, the merchants could easily go elsewhere. And with a damaged reputation, the arbitrator would find it harder to gain employment after that.
The American Arbitration Association (AAA) does this in America, in the present day.
This organization was founded in 1926, in order to provide an alternative venue to the courts.
It currently handles tens of thousands of cases per year.
Private rights enforcement agencies
Here we are, at the crux of these ideas.
I will now lay out an outline of how this system would work.
It starts with "rights enforcement agencies", which would work very similarly to insurance companies.
Everyone would pay their respective company a monthly fee, and in return the company would negotiate service on their behalf. Their job would be to start the legal process going, and help their client seek recourse, not enforce legal decisions.
There would most likely be dozens, if not hundreds of these in a country like the United States.
A person would able to change agencies, if they didn't like the laws that they were living under.
"How would we decide what rights are?"
The individual insurance companies would do market research, and decide what laws people living in their area would want to live under. Perhaps there could be meetings, or an online survey to make things efficient.
The agencies would hire legal experts, who would write laws according to what they find.
Anglo Saxon Law, or what is know today as common law was actually developed by competing judges, rather than by arbitrary rule of the sovereign. It was developed through experience in different situations, universal principles, and decisions made in the past. The judge's task here was not to make the law, but rather to discover it.
Ancient Roman law (which was the basis for Anglo Saxon Law) operated in a similar manner. The judges operated almost like scientists. This was too ensure a just decision, rather than a biased opinion in favor of the sovereign controlled courts which came along later. The King would often just establish law, based on what pleased him.
I think it's common sense to most people, that these agencies would protect people from murder, theft, rape, vandalism, etc.. Things that the general population all agree are wrong.
If you think about it, in the case of murder.. the agency would have an incentive to seek recourse.. since they just lost a paying client.
I think that the majority of the laws that people live under, would be the same. Uniformity would make the legal processes easier.
There would however, most likely be some variations from region to region.
For example, a desert might have laws that relate to property rights with water. Or, a cold area might have property rights in regards to snow removal.
When you think about it, we already have laws that vary state to state. Or in some cases, even county to county.
This is the same thing, just on a much broader scale... and the people have more of a say.
"How would situations with pollution be handled?"
This is more simple than people realize.. It comes down to private property rights.
Believe it or not, this used to be the way it was handled in the US before the Industrial Revolution.
Let's say that a woman went to hang her clothing out on a clothesline in the 1850's. If smoke from a factory down the road blew onto her clothing, she could go to the court and they would issue an injunction.
The injunction required that the factory stopped letting smoke blow in that direction, or else they would have to pay a fine to that woman.
To get around this, the factory might use anthracite coal instead of sulfur coal, which had fewer impurities. And/or maybe they would put a smoke stack filter on.
So why did we fall away from this?
It started during the "Second Industrial Revolution" right after the Civil War.
Who had the number one economy in the world? Great Britain.
And which country do you suppose wanted to be number one?
I think that's obvious.
Industrialization was occuring rapidly, and it was seen as necessary for man's progress. And pollution was an unavoidable side effect of that.
Lawsuits to prevent pollution was seen as counterproductive. There was even a political cartoon showing a girl and her mother eating soup an outside restaurant. The mother told the girl to hurry up and eat her soup, not before it got cold, but rather before it got dirty.
The world is cleaner today than it was say, 150 years ago. I think that enforcing this system would be far easier than it was back then.
"What about nuisance, drug laws, and other things?"
Nuisances such as "indecent exposure" or "noise pollution" would be negotiated by the clients and the agencies.
Those issues relate to property too; If somebody comes running naked across someone else's front lawn, maybe they could be liable to be sued.
Drug laws would most likely be repealed, depending on what the people living in the given area wanted.
I could foresee marijuana being legal for recreational use nationwide, under this system.
"What happens when the two parties involved live under different rights?"
Bear in mind here, that the rights enforcement agencies would be more interested in profit, than conflict.
It wouldn't be in the interest of an agency to get into a war.
A historical example of this principle:
Shortly after Rome fell, Europe was full of various tribes living side by side.
One such example was the Franks living alongside the Visigoths.
A custom amongst them, was to send the accused party to the plaintiff's court.
Case in point:
If a Frank murdered a Visigoth, the other members of the tribe allowed that Frank to be tried in one of the Visigoth courts. This is because if they didn't turn the murderer over, it could possibly lead to armed conflict between the tribes; something that both wanted to avoid.
That, and it just acknowledged that individuals are responsible for their actions. The whole tribe didn't need to suffer for the actions of one person.
A scenario to show how this might play out.
I come home to my apartment one day, to find out that my laptop has been stolen.
As part of my arrangement with Rothbard Security, I have a camera installed.. They find footage of what appears to be my friend Christopher Lee, stealing my computer.
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| Chris Lee |
Rothbard Security sends five big, burly guys over to Chris Lee's living quarters to demand that he return my laptop.
Chris Lee says: "No! This is my laptop! I've had it for awhile! I didn't steal it! Go away!"
Chris Lee then calls his agency Friedman Protection, and they send five guys over to his place to meet the guys that my agency sent.
Wouldn't this set up a war between the agencies?
Most likely not.. Since the agencies are for profit institutions, they need to please their customers. If they don't, their customers can take their money elsewhere.
If a new rights enforcement agency sees that Chris or I are unhappy with our current arbitrators, they can swoop in and offer us their services, possibly at a lower rate.
Also, if the men who were sent over knew they were being used to fight someone else's battles, they could start demanding higher pay (which in turn, would lead to higher insurance premiums), or just quit and go work somewhere for an employer that doesn't put them at unnecessary risk.
Most likely, when the situation described above happened, they would call headquarters:
"We have a problem here!"
In order to avoid this "war", this dispute would be taken to court.
"How would the court be decided?"
For the sake of efficiency, the agencies would most likely agree on a court in advance. It would spare them the headache.
If they don't, most likely the aggrieved party would pick the court. (As I laid out in my Franks-Visigoths example.)
I think that most people agree that it would be the moral thing to do, and it would prevent conflict amongst the agencies.
This sort of thing would most likely be signed in the contract when the person signs on with their agency.
"Wouldn't criminals be able to get together and form their own rights enforcement agencies?"
This would be unlikely. The reason for the this that criminals wouldn't want to live in places where they aren't protected themselves.
For example, a murderer wouldn't want to live in an area where murder is legal, because then they could legally be killed themselves. Same thing applies to thieves and theft.
Also, the odds of finding enough outlaws to support an agency would be unlikely.. they would be fighting a hopeless war with the rest of society.
"Would everyone be able to afford an agency? And what if someone doesn't pay an agency?"
The answer to this is more simple than people think. If you look at the consumer goods around you, you realize that most businesses cater to the mass market, because that's where the money is.
iPhones are affordable to the average person, because it wouldn't make sense to sell a few to a handful of rich people. Same goes for most restaurants, clothing, cars, etc. If something is affordable to the average person, not only will you sell more of that item, but you also have the ability to issue new versions of it, which will continue to bring in the money.
Hence, why we have newer models and computers of phones coming out every year, or even more frequently than that.
If someone chooses not to patronize an agency, they would have no arbitrators to negotiate on their behalf. They would essentially be an outlaw, and they would be fair game to anyone that they crossed.
"Would a rights enforcement agency become powerful enough to become a government?"
Most likely not, since there would be competing agencies. As I wrote above, I think that there could easily be hundreds in the US.
I don't want to go off on to much of a tangent about this, but no monopoly has ever existed without government involvement. As long as there is someone else, or more likely several others to go to, the agencies would be kept in check.
The old definition of monopoly, was in fact "exclusive right to produce a product".. which was given to a favorite company of the ruler.
So our court system today, actually fits the old definition.
Private courts
I believe that this most likely would be better than our current court system.
Here's why:
Courts now are based on districts. There is a set number, arbitrarily determined.
Under this sort of system, there would be numerous courts and it would reflect the need for them in a given area.
For example, my hometown has under 5,000 people, so it might have 2 or 3.
A large city like New York, would probably have far more than it does now.
A person with a legal background would have to convince one of the rights agencies that they would be suitable to hold court.
"How would judges be chosen?"
Currently, they're elected, or selected based on political connections.
The only way to get rid of a bad judge, is if they're known for extreme corruption.
Under this system, the rights agencies would evaluate a judge for their wisdom, legal knowledge, and honesty. If a judge was known to be inefficient or corrupt, they would pick someone else... and said judge would have trouble finding work with a ruined reputation.
"Couldn't the judge just be paid off to rule a certain way?"
I'm not going to say that this couldn't happen under my envisioned system, but as I started to delve into above, it would be less likely.
There would always be more than one judge to pick from, and since each judge would want to be selected, they would have an incentive to keep an honest reputation.
The judge would be looking to establish and ultimately maintain their own "brand name" if you want to look at it that way.
In my view is that: the market itself, is the ultimate check and balance.
I think of when I picked my dentist here in NYC; The website posted reviews from his customers, and they were all glowing. And when I went there, the reviews matched up.. He was very nice, and did a good job.
I personally believe that in today's world with information as readily available as it is, this would be far easier for people to do their research before picking a judge.
"How would courts be financed?"
Multiple ways.
I think that perhaps the best way wold be a "usage fee" since courts are only used when needed, not all the time.
The judge getting paid for each trial he conducts, would be like a realtor getting a commission for a sale.
"What about those that couldn't afford lawyers?"
Perhaps law students could handle these cases under the supervision of an existing lawyer as part of their training.
"How would sentencing work?"
This would be determined by the judges, beforehand.
The rights enforcement agencies would talk with the judges, who would most likely draw heavily from the already existing legal code.
It's also highly possible that there would be more torte law in this society.
As I established above, most businesses cater to the masses, so they would want to provide services that their clients could afford.
Maybe the lawyers could take a cut of the settlement as payment for their trouble.
"Would capital punishment exist in this system?"
Most likely not, since the country is getting further and further away from it. People on the Political Left tend to be against it, as are libertarians.
However if it does, David Friedman offered a solution for this.
If the clients of two rights enforcement agencies belong to firms that have opposing views on capital punishment, the anti capital punishment agency could raise their premiums a little, and pay off the pro capital punishment agency to accept a court where the judge won't issue a capital punishment ruling.
If the majority of the people in an area are against capital punishment, this cost would be dispersed over a wide number. People would most likely be willing to pay a tad more, because they know that protection from capital punishment is worth that.
People would "vote with their dollars" as it were. And in a healthy economy, (not the crony capitalist economy we have now) more of the money would be in the middle.
But, that's a conversation for another time.
"Would there be an appeal system, like in today's present courts?"
I think that this could certainly be arranged.
Most likely, if the defendant is dissatisfied with the sentence, they could take the case to another court.
We currently do this, with the local courts being the beginning, and the Supreme Court being the cut off point.
What would most likely happen here, would be that both parties would agree on a cut off point in advance. Maybe say, a maximum of three trials, with verdict of two of those being the final decision.
Most judges wouldn't want to keep issuing rulings on the same case over and over. It would be a waste of time and money.
"How would jails work?"
Most likely, they would paid for via the premiums to the rights enforcement agencies.
Once the trial is over, one of the rights enforcement agencies would agree to house the criminal for the set amount of time.
A point that the economist Robert Murphy made, which I really agree with, is that the prisons could be outfitted to accomodate the prisoners' skill sets.
Let me give an example:
Say you have a crazed axe murderer, that also happens to be a skilled engineer.
He could do his work inside the jail, perhaps in more comfortable quarters, but away from the rest of society.
That way, he would still be locked up to prevent harming anyone, but he would also be contributing something of value. And perhaps if he wanted to purchase things from the proceeds of his work, he could so inside the prison.. He just wouldn't be able to leave.
This made more sense to me, than just having everyone wash license plates and break rocks.
Conclusion
I think that I've done a pretty good job of laying out how a legal system based on the natural law,a nd private property rights could work.
If anyone has any comments or questions I will gladly take them.
Thank you for reading! I will have more coming soon!
- STK
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