“Without centrally imposed government law, wouldn’t we have chaos in the streets?”
I will now address an idea that surprises many people at first, but actually makes a lot of sense once explained:
“How can law and order exist without the State?”
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.)
Anglo-Saxon England:
The Anglo Saxons moved into Britain about 450 A.D., just before the end of the Roman Empire.
By around 900 or so, Anglo-Saxon tribes were organized into administrative districts called “hundreds”. Despite the name, it didn’t automatically mean one hundred people. It’s unclear why this was, but it’s likely that it may have been one hundred people early on. The hundred was “unofficially lead” by a “hundredsmann” who was essentially a de facto chief in each hundred. He was the one the people informed when a crime occurred. He would be the equivalent of a “chief of police” today.
Each hundred was made up of even smaller groups of people called “tithings”. The tithing was originally based on kinship, but this changed as people moved around. They then became structured more like mobile neighborhoods. If a person didn’t join a tithing, they were essentially an outcast. This encouraged people to make themselves useful to others, in order to secure membership.
Each tithing sent four “suitors” to serve in a hundred’s court. All the suitors made up the court, but only twelve suitors total served in the arbitration process.
“What determined the law in this kind of civilization?”
This was “Anglo-Saxon common law”, which serves as the base for modern law today. The law was pretty much common sense; don’t kill, don’t steal, don’t rape, don’t vandalize, etc. No aggression against people or their property. If you joined a tithing, you agreed to this sort of arrangement.
This was a system of tort law, with restitution payments to the victim as punishment for a crime. That, or payments to the family of the aggrieved party. If a person couldn’t pay, they had to work for the victim (or their family) until the debt was paid.
If a person refused, they were ostracized and branded an outlaw. They would then be able to be killed without consequence, have to convince others to take them in, or survive on their own in the wild.
“Why did this end?”
Since the Anglo-Saxons were constantly at war with each other, the native Celts, and later Vikings, the free Anglo-Saxons looked to strong war chiefs for leadership. The war chiefs that were most successful on the battlefield rose to the top. These men passed on their leadership titles to their eldest sons, as well as the land and wealth that they had acquired through their wars. These men formed the first kingdoms in England.
Between about 450 and 600, the kingdoms had consolidated to about seven. Within two hundred and fifty years, it became three: Northumbria, Mercia, and Wessex. By the eleventh century, England was united. Shortly thereafter, the Anglo Saxons banded together to fight off the Vikings.
The problem with all of this occurring was that it concentrated more and more power in the hands of the king. As the philosopher Randolph Bourne said:
“War is the health of the State.”
This was when the whole concept of the “king’s peace” developed. It was based on the Anglo-Saxon concept that “each home deserved its peace.”
Law became subject to what the king wanted, rather than mutually agreed upon rules between parties. The kings kept inventing reasons for why their “peace was violated”, with fines for each “offense”. This could be anything from being in the wrong place as the king, to walking in the king’s path, slandering the king, etc.
The kings extended this privilege to their men, who would invoke “in the name of the king!!” as justification for extorting the population. They would then often pocket the money themselves.
The ultimately resulted in the signing of the Magna Carta in 1215, which limited the king’s power.
“Saga era” Iceland:
In addition to Anglo-Saxon England, this was perhaps one of the systems that influences the arguments for private governance the most.
It’s very intriguing... Despite the fact that the pagan Vikings were known for their brutality, this system produced a pretty peaceful society.
This civilization existed roughly from the tenth to the thirteenth centuries A.D. Many Vikings fled Norway for “greener pastures” in recently discovered Iceland, as well as England, Scotland, and Ireland.
Iceland was divided into quarters, with a total of nine sections in those quarters 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 originally hereditary, but could also be purchased for a fee.
Loyalty to a godar was voluntary.. If someone wanted to leave living under a certain godar, they could do so. They could swear loyalty to another.
In return for the protection granted by pledging loyalty, the Icelandic man would have to serve the godar in his conflicts. The godar would also in turn serve as their lawyer in court to those following him.
There was a “supreme court” called a “Varthing”, which was made up of thirty six judges. The judges were picked from among a godar’s population, with each godar sending four judges to the court. The final decision was based on majority vote of those thirty six judges.
This legal system was very strict, and operated under a tort law system.
This was like Anglo-Saxon England; 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 to pay off the debt.
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 Scandinavia.
“Why did this system collapse?”
Up until about the year 1000 or so, the Icelandic Vikings were largely pagan. Christianity was allowed, but the Christians were still required to pay fees to the temple of the deity that the chieftain they swore loyalty to favored. This was considered part of being loyal. During this time, Christians and pagans lived side by side in relative peace.
In 1000, Christianity was made the compulsory religion in Iceland; religious freedom was gone. This was largely due to the influence of King Olaf I of Norway, whom Iceland relied heavily on as a trading partner and wanted to appease.
In 1097, a compulsory tithe to the Church was instituted. The tithe came in four parts:
The first went to the local bishop.
The second went to the local priest.
The third was for essentially what would be called “welfare relief” today.
The fourth went to the maintenance of church buildings.
While this fourth one doesn’t sound like a big deal, it actually played a major role in dismantling the system. Since the Church wasn’t able to seize Icelandic land outright, it instead had the effect of concentrating more power in the hands of the private land owners whose land happened to hold churches. These landowners were called “Storgodhar” or “big chieftans”.
Since the Middle Ages in general were a period of intense religiosity, the Icelanders did this without question. This lead to the Storgodhar gaining more and more power, and the previous system of voluntarily pledging loyalty to the godars meaningless. This system removed the incentive for the Storgodhar to do the right thing, since they could raise the tithe as they saw fit.
Over time the gap between the rich and the poor grew, and this created civil unrest. This ultimately culminated in a civil war, which ravaged the country. With Iceland in its weakened state, the Norwegian king finally brought Iceland under Norwegian rule in 1262.
If this isn’t an argument for the separation of Church and State, I don’t know what is!
Renaissance Italy
I’m not going to talk so much about the legal system here, but rather the overall 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. Although the various city states were independently ruled, they still traded with each other as well as the rest of Europe.
This kept the peace. Genoa wouldn’t want to go to war with Venice, because they were trading partners. This arrangement could be summed up by what a great economist said some time later:
“If goods don’t don’t cross borders, soldiers will.”
As long as you had the former, you didn’t have to worry as much about the latter!
(Think about today, and why a war with China would be catastrophic for both them and the United States.)
When conflicts did arise, they were usually between wealthy families. Those families generally hired mercenaries to do the fighting for them.
Think of “Romeo and Juliet”
There weren’t major drafts of the population to fight, and the inter-State wars of the twentieth century 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. There’s a choice either way.
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.
The importance of private property rights, and how it ties into these ideas:
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 the economist Thomas Sowell provided for this (I’m paraphrasing):
“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 that only benefits those on the receiving end.”
2) Different people have different ends. This is especially important when you consider the previous reason.
There’s only 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? There’s no easy answer here. It is vital that the price emerges as a result of various supply and demand factors. The competing interests bid up the price of the oil, 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 outside of general law
The idea of agencies outside of government bodies laying out law sounds outlandish to most, but it really isn’t.
Merchants have used private arbitrators since the around the time of the early Middle Ages. This was called the “lex mercatoria” or “law merchant”.
Think of it like this; in those days, a merchant needed someone to help guide their dealings with foreign merchants. Someone who understood their language, knew their customs, and could make sure that neither of them were being ripped off.
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 among each other for clients kept them honest. 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) founded in 1926, does this up into the present day. It currently handles tens of thousands of cases per year.
An idea for private rights enforcement agencies in the modern day
Here we are, at the crux of these ideas.
I will now lay out an outline of how this system could potentially work in the present.
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. The role here would not be to enforce legal decisions. (That will be explained shortly.)
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 which I talked about earlier, 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 to ensure a just decision, rather than a biased opinion in favor of the authoritarian controlled courts which came along later.
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.
And I think what would be great about this sort of system would be that as with all market based institutions, the business would only survive by pleasing the customer.
In the case of murder for example; the agency itself would also have an incentive to seek recourse, since they would have just lost a paying client. Not to mention the harm to their reputation and problems with the victim’s family if they didn’t.
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.
We already have laws that vary state to state or even county to county.
“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 which has fewer impurities than sulfur coal. 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 occurring rapidly, and it was seen as necessary for man’s progress. Pollution was just viewed as an unavoidable side effect of that.
Lawsuits to prevent pollution were seen as counterproductive. There was even a political cartoon showing a girl and her mother eating soup at 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, one hundred and fifty 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?”
In the case of religious law, people would most likely be told that it only applies to other people of the same religion. The laws might not be upheld if they venture outside of their own community.
Also bear in mind here, that the rights enforcement agencies would be more interested in profit, rather 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 among 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 was 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 private conflict resolution could 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.
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.. War is a costly endeavor. Politicians are able to engage in protracted wars because they can have more money printed, and/or borrow it from other countries.
How would a private agency be able to do this? Would people really be willing to loan a company money to fight other people?
And since the agencies would voluntarily acquire their money (rather than at the point of a gun like the government), they would need to please their customers. If they didn’t, their customers could leave them and sign on with another rights enforcement agency.
If a new rights enforcement agency sees that Chris or I are unhappy with our current arbitrators, they could swoop in and offer us their services. Possibly at a lower rate too.
Also, if the men who were sent over knew they were being used to fight someone else’s battles, they could start demanding higher “hazard pay”. The problem is that this in turn would be passed on to customers in the form of higher insurance premiums. Or, the men could 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 various agencies would most likely agree on a court in advance. It would spare them the headache.
If they didn’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 and efficient thing to do, and it would prevent conflict among the agencies.
This sort of thing would most likely be signed in the contract when the person joined up 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 this, is that criminals wouldn’t want to live in places where they wouldn’t be protected themselves.
For example, a murderer most likely wouldn’t want to live in an area where murder is legal. This is because then they could legally be killed themselves. Same thing applies to thieves and theft, vandals and vandalism, and on down the line.
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 down the line. “Planned obsolescence” as it’s called.
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 won’t go off on too much of a tangent about this here, but no monopoly has ever existed without government involvement.
As long as there is another agency (or more likely several other agencies) to do business with, a monopoly would not exist.
The old definition of monopoly, was in fact “exclusive right to produce a product”.. which would come from where in this kind of environment?
Think about this too:
Our court system today, literally fits the old definition of a monopoly.
Private courts
I believe that this most likely would be better than our current court system.
“Why’s that?”
Courts now are based on districts. There is a set number, arbitrarily determined.
Under this sort of system, there would be numerous courts. The number would most likely reflect the need for them in a given area.
For example, my hometown has under five thousand people, so it might have two or three.
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, efficiency, 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 with the mercantile arbitrators, 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 a nutshell: 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 would be a “usage fee” since courts are only used on an “as needed” basis.
The judge getting paid for each trial he would conduct, 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 in advance, who would most likely draw heavily from the already existing legal code.
It’s also highly possible that there would be more tort law in this society, as under the Anglo-Saxon common law and Medieval Iceland.
“Would capital punishment exist in this system?”
Most likely not, since the country is getting further and further away from it. Many across the various sections of the political spectrum are rejecting it.
In the event it does, here’s one potential solution:
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 ultimate 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 one economist made which I really agree with, is that the prisons could be outfitted to accommodate 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.
Thank you for reading!
— STK
