Is justice possible without the State?

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Published : August 18th, 2022
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Category : Editorials

In Chaos Theory, Robert P. Murphy sketches how market forces would operate to support the private production of justice and defense -- two areas that are traditionally conceded to be the sole province of the State.  


Murphy contends that not only would the market be able to provide these services, but would do so much more efficiently and equitably than the system we have now.


Here, I’ll confine discussion to a few key points he makes about the production of “justice” on the free market.


As with the western pioneers and the world today, no single set of laws or rules is needed to bind everyone.  People would enter into voluntary contracts that spell out the rules they agree to live by.   “All aspects of social intercourse would be ‘regulated’ by voluntary contracts.”  


Who makes the rules?  Private legal experts, who would draft laws under open competition with rivals.  The market deals with “justice” as it does with other services.  As Murphy notes, 

“the market” is just shorthand for the totality of economic interactions of freely acting individuals. To allow the market to set legal rules really means that no one uses violence to impose his own vision on everyone else.

In an advanced AnCap society, insurance companies would play a major role.  People would buy policies, for example, to indemnify their victims if they were ever found guilty of a crime.  As they do now, insurance companies would employ experts to determine the risks of insuring a given individual.  If a person were considered too great a risk he might be turned down, and this would be information others would use in deciding if and how they wished to interact with him.


Critics say this might work for peaceful, rational people but what about incorrigible thieves and ax murderers?  How would market anarchy deal with them?


All Property is Privately Owned


Murphy reminds us that “wherever someone is standing in a purely libertarian society, he would be on somebody’s property.”  This allows for force to be used against criminals without violating their natural rights.  He cites the example of a person entering a movie theater, with an implicit contract such as the following: 

If I am judged guilty of a crime by a reputable arbitration agency [perhaps listed in an Appendix], I release the theater owner from any liability should armed men come to remove me from his property.

In this way the use of force would have been authorized by the recipient himself beforehand.


But where do these armed men take the criminal?  On a free market, a high-security analog to jails would evolve.  These jails, though, would resemble hotels because they would be competing with each other for business, which in AnCap means both pleasing the criminal and guaranteeing his secure detention.  


Unlike government prisons there would be no undue cruelty and virtually no chance of escape.  If a dangerous criminal escaped and killed again the insurance company would be held liable.  And a prisoner who didn’t like the way he was treated would have the option of switching to a different jail, as long as his insurance company was in agreement.


Would the Mafia Take Over?


People who support the State because they believe organized crime would take control of an AnCap society should consider that we’re already living  under the “most ‘organized’ criminal association in human history.”  Whatever crimes the Mafia has committed, they are nothing -- nothing -- compared to the wanton death and destruction states have perpetrated.    


We need to consider, too, that the mob gets its strength from the government, not the free market.

All of the businesses traditionally associated with organized crime—gambling, prostitution, loan sharking, drug dealing—are prohibited or heavily regulated by the state. In market anarchy, true professionals would drive out such unscrupulous competitors.

Applying AnCap


Murphy discusses several applications of anarcho-capitalism in today’s world, one of which is medical licensing.  Almost everyone believes that without government regulation we would all be at the mercy of quacks.  “Ignorant consumers would go to whatever brain surgeon charged the lowest price, and would be butchered on the operating table.”  Therefore, we need the iron fist of government to restrict entry into the medical profession.


But this is pure fiction.  Since the demand for safe and effective medicine is universal, the market would respond accordingly with voluntary organizations that would allow only qualified doctors into their ranks.  Insurance companies, too, would only underwrite doctors who met their standards, since they would stand to lose millions in malpractice suits.


Regarding the ongoing controversy of gun control, Murphy sees legitimate points to both sides of the debate:

Certainly we cannot trust the government to protect us once it has disarmed us. But on the other hand, I feel a bit silly arguing that people should be able to stockpile atomic weapons in their basement.

How might AnCap resolve this?  Let’s say Joe Smith wants an insurance company to agree to pay $10 million to the estate of anyone Smith happens to kill.  “The company will be very interested to know whether Smith keeps sawed off shotguns—let alone atomic weapons—in his basement.”  In this way truly dangerous weapons would be restricted to those willing to pay the high premiums for owning them.


Though it’s hard to imagine any company willing to issue a policy to a holder of nuclear weapons, nevertheless, if someone wanted to, there would be no agency with the authority to prohibit owning them.  But without a policy, a person would be unable to guarantee his contracts with others and would find it virtually impossible to function in society.


Getting there from here


Establishing an AnCap society depends heavily on the history of the region.  North Korean market anarchists, for example, might have to use violence to curtail that brutal regime, while in the United States, “a gradual and orderly erosion of the State is a wonderful possibility.”


The one thing all such revolutions would share is a commitment by the overwhelming majority to a total respect of property rights.


People already understand that rape and murder are crimes - even rapists and murderers.  The hard part is convincing people “that murder is wrong even when duly elected ‘representatives’ order it.”


We can build on intuitive notions of justice, just as newly arriving miners in California respected the claims of earlier settlers.  

To take a more modern example, even inner city toughs unthinkingly obey the “rules” in a pickup game of basketball, despite the lack of a referee.

As he explains in a footnote, the players in a pickup game still recognize the existence of a foul (and other rules), even if the offending player denies he committed one.  

Now, the market solution to such ambiguity and bias, for games deemed important enough to warrant the extra cost and hassle, is to appoint official referees to apply the “law” (which they too unthinkingly respect). Notice that at no point is a violent monopoly needed to achieve this orderly outcome. 

 Conclusion


Those who defend the State as necessary to protect  property rights should brush up on their history, from day one to the present.  As Murphy wraps up,

I ask that the reader resist the temptation to dismiss my ideas as “unworkable,” without first specifying in what sense the government legal system “works.”

Seeing how government “justice” has worked especially since the election of 2016, that would be a tall challenge.


George Ford Smith is a former mainframe and PC programmer and technology instructor, the author of eight books including a novel about a renegade Fed chairman (Flight of the Barbarous Relic), a filmmaker (Do Not Consent), and an advocate of stateless market government.  He eagerly welcomes speaking engagements and can be reached at gfs543@icloud.com. 

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George F. Smith is the author of The Flight of the Barbarous Relic, a novel about a renegade Fed chairman and the editor of Barbarous Relic.com.
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