This is one of the major reasons I do not identify myself as an anarcho-capitalist. I’ve read about free market courts and how they would work but (at least in my eyes) there is a fundamental flaw.
Say I steal someones car in Baltimore and drive it up to Boston. The person I stole from would go to a free market court and press charges on me, ordering me to appear in court. What if I refuse? They can’t do anything about it since I own myself and I am innocent until proven guilty.
If you refuse to show up, the court could issue a default judgment against you. At that point, it can seize your property or force you to pay restitution in other ways. If it becomes evident that you refused to answer the charges against you, I don’t think anyone will offer their protection services to you. You could try to escape to a jurisdiction (agency) without an extradition treaty - just as you can today. Presumably, the more serious the offense, the easier it would be to extradite you.
A couple of questions. How does the Boston agency assert any authority over the Baltimore thief in the absence of a contractual relationship between the thief and the Boston agency? Also, assuming that the thief has no contractual relationship with the Baltimore private security agency or the Baltimore private dispute agency, how could either assert any authority over the thief? The default judgment by the Baltimore agency is enforceable only if it has “jurisdiction” over the thief. How would it have such “jurisdiction” in the absence of a contractual relationship?
This scenario relates to the continual problem for anarcho-capitalists (and I would be one if I could get around certain problems like this): How do you assert authority over an alleged wrong-doer in the absence of a contractual relationship without resorting to legal fictions and implied contract theories? And how could you force someone to contract with a private dispute agency without first asserting non-contractual authority over him?
It sounds like your assumption is that “no one is allowed to use force against someone else without a prior contract between them.” I would disagree with that claim. I believe that no agent is allowed to initiate force against another agent, but once force has been initiated, it may be necessary to use force to bring the criminal to justice. The question in political philosophy is therefore to determine what social arrangement maximizes the incentive to both protect and respect individual rights.
In your example, the situation is not that different from the citizens of two countries. If I commit a crime in “your” jurisdiction, I am liable under your laws. I may try to seek immunity by escaping to another jurisdiction. In that case, the two agencies have to coordinate whether the suspect will be extradited, tried in his home jurisdiction, or whether extradition will be refused entirely. It’s very rare for two nations to go war over such a disagreement. It is common to have a pre-existing extradition treaty to facilitate such cases.
If the suspect is not a customer of any protection agency, then the Boston agency could just hire any bounty hunter in Baltimore to bring him in. This might seem unjust, but then the suspect has already indicated by his actions that he wishes to interact with the customers of another agency while refusing to mediate disagreements between them.
The worst case scenario is a customer unfairly accusing an “uninsured” person. But this just means that unless you want to be a total hermit, singing with a protection agency is a worthwhile investment.
Thanks for the helpful comment, and I agree with your conclusions as to what would probably happen. But that isn’t materially different from what happens now with a government. Also, you say that the thief “has indicated by his actions that he wishes to interact with customers of another agency while refusing to mediate disagreements between them.” But what if the alleged thief is innocent and hasn’t indicated any desire to interact with the complainant?
The difficult issue of political theory that still remains is: Under what underlying grant of authority does the private agency act? In the example of the two nations, jurisdiction isn’t a theoretical problem, because the alleged thief is a citizen of one of the nations and is therefore subject to the jurisdiction of one of the nations. But if no government exists, and no contractual relationship exists, this is quite different, especially if the alleged wrong-doer is innocent.
Here’s a simplified example. You and I are citizens of Dallas. I was born and raised there but have never contracted with a private dispute agency. You (wrongly) think that I have stolen your car and you seek to bring me before your private dispute agency. I deny being a thief and deny the authority of your agency to determine my guilt or innocence. You and I have no contractual relationship. You get a default judgment and I deny the enforceability of the judgment. By what grant of authority does your agency execute on the judgment and take my property to make you whole for your loss?
You are all thinking about it wrong. Of course you would have your things insured. And it is in the interest of the insurance company to not pay you for the insured item whenever it becomes stolen as it would be bad long-term business. They pay your insurance to begin with and your problem is out of the way. Meanwhile they would hire private investigators as they do today already trying to undo the wronging that has been comitted to you in order to make a bigger profit.
If the stolen car is found by the investigators the alleged thief’s insurance company and my insurance company would come to determine the correct owner of the property by showing empirical proof of ownership. And if it is proven that it was my car the thief’s insurance company would of course be demanded to pay my insurance back for what they payed me and their overhead and so on. If they refuse to do so the word will get out which lousy insurance company that doesn’t take responsibility for their customers and no other insurance company will make any further transactions with such. If it was a good insurance company they would pay restitution to my insurance company and announce that the theif is no good client and companies would rasie his insurance fees. If he is without an insurance company he would be in a very bad situation as he would have no third party to cover financially for him when he screws up resulting in a much harder time to do business. His reputation would also decrease of course which would make some people refuse to do business with him.
Of course their is some people that would choose not to have an insurance company. Which is of course is a fine way to be living if one like it so. They would of course lack the third party financial backer which would make it more difficult to make people trust your ability to uphold contracts. And if someone refuses to arbitrate over property rights. Their reputation for being reliable people to do business with would plummet instantly.
Stealing for a living is also very risky in a society where people own guns. Some criminals may even want to volounatry seek “jail” to be protected from angry people.
I think we have to be clear on what we mean by “authority.” Authority means both power and respect. States have authority both because they have more guns than anyone else and because the public generally trusts them to maintain order. However states do not have an irrevocable claim or contract to use force against individuals - there is no such thing as a “contract by birth.” Under a system of centralized government, the same entity usually has authority over all disputes. Under a “fully voluntary” system, authority is divided between many actors. However the fact that authority is divided between independent actors does not mean that the authority does not exist. Actually, authority is divided in governments also - they just have rigid rules (laws) for resolving disagreements. The private system differs in that the rules for resolving disagreements are set by market power and consensus rather than democratically or dictatorially.
Going back to your example, you can deny the authority of the agency all you want, but if it has the power to seize your property and the respect of the community when it does so, then it has the authority - because that’s what authority is. That does not mean that customers can accuse any non-customer and seize their assets. There are both immediate and long-term costs which encourage due process and moderation. It may mean that it is in the interest of any non-isolated individual to nominate a dispute-resolution/insurance/protection agency on his behalf.
I think I’m with you here. In certain cases, a person might have to answer to a person or entity to defend himself or his property despite having no contractual or voluntary relationship with the claimant, much as he might if a government existed. But this is a rare case. In most situations – in ordinary, day to day life – all individuals have more freedom than under a government. So, having no government means that, in rare cases, one has no less liberty under anarcho-capitalism, but in most cases one has more liberty. Is this a fair summation?
If Smith has done no harm to Jones, but Jones nonetheless hires an agency to take Smith’s car because, as Jones falsely claims, Smith has “stolen” it, then the agency and Jones have both aggressed against Smith. (The agency should have varified Jones’s claim first.) What is Smith’s recourse?
Smith can now sue Smith and perhaps the agency he hired as well. (If the agency knowingly stole the car for Jones, they should certainly be sued. Whether or not they ought to be sued if they simply did an insufficient job of verifying Jones’s claim is debatable.) What if Jones doesn’t show up to court, will it rule him de facto guilty? No, it will simply see Jones as not wishing to present any evidence of his innocence or any arguments therefor. Upon Smith proving beyond a reasonable doubt that the car is actually his, the court will award him both his car and the value of his car. (As Block writes, two teeth for a tooth.)
If Jones doesn’t like this ruling, he can hire his own court. If that also rules in favour of Smith, Jones ought to give up. But let’s say Jones has paid the judge off, and it rules in favour of Jones–now what?
The two judges get together and decide amongst themselves another judge to which the two men can turn, and that judge will be the final arbitor (unless the two men have agreed in advance that they want to go for best three out of five, or best four out of seven–but they’d be stupid to waste so much money on that).
I must admit that I have read very little on the subject, so this come exclusively from what seems reasonable to me.
My fundamental assumption is that we each possess our rights (here, property) so long as we do not violate the rights of others, but that any violation of the rights of another constitutes a forfeiture of our own rights in commensurate degree.
Consequently, if you steal someone’s car, you never do gain a right to the car and also lose your right to goods of a value equivalent to the lost productivity of the other person due to his efforts to recover his car, within reason. The simples solution for him would be to come back and take the car and goods by force. This, however, is not in his best interests: if you are willing to steal his car, you might also be willing to defend it by force, and his action would have little perceived legitimacy if you chose to challenge his determination that you stole his car. Consequently, he could take the case to a private court to have them verify his claim. This court has jurisdiction over you not because you are subject to the court, but because you have no right to the car if you stole it, and thus the court needs no jurisdiction. Because the court has no claim over your liberty it cannot oblige you to attend, or to assign a penalty for non-attendance, but it can deliver a verdict in your absence.
I’d like to draw attention to this post. Everyone is focusing on the story of the thief, but justice as an ideal is just vengence with window dressing, what really matters is people are compensated for harms.
If the dude who owned the car had insurance, his harm from having his car stolen would be rather small, he’d have to pay the deductible, and then his insurance would buy him a new car.
Of course his insurance company would investigate the claim, but when they found the most likely suspect had skipped town, they would look up his address using a credit check, and contact him, giving him 30 days to get in touch with him. He now faces a very difficult choice. He can either face up to what he did and get in touch with the insurance company to start making a plan for restitution, or he can abandon his identity and start over. Reputation is very important for your career, credit, and insurance. It is not uncommon for employers to run a credit and criminal background check against job candidates. To throw all of that away as an adult is costly.
But say this thief has a poor reputation already. He never pays his bills, and the banks want nothing to do with him. It is time to join the underground cash-only economy for him. He can now live only in high-crime areas, legitimate work is almost impossible to find, and the only bar that lets him drink there is frequented only by criminals and the bounty hunters looking for them. This car-thief would be safer in jail, hopefully he can find one that he can afford.
Vengeance is a waste of resources for an individual. The modern world is too big to remember who bears a grudge and who doesn’t. Prevention is more important, and smart people in a free world would invest in insurance and security, and use their resources after a tragedy to recover and reduce future exposure, instead of punishing this criminal, with no effect on the next one.
Vengeance belongs to God and Government for a reason, it is damn near useless for men.
We are anarchists because we object to the vengeance system that the State calls justice. Vengeance places punishing the criminal ahead of compensating the injured. The State robs the victim a second time in order to pay for the cage that holds the offender.
If you belief penitentiaries to be a noble endeavor then you can not be an anarchist. A free market justice system would by necessity be compensatory rather than punitive.
Who said anything about prison? I do not find prison to be a just punishment for any crime, it imposes a cost on others, and it fails to make restitution.
You mention that what matters is the compensation of harms, but what about the harm to the insurance company? Just because they insure cars as a business does not mean that having to pay is not a harm. The insurance aggregates the risk that the crime may not be restituted, but it cannot eliminate harm. The criminal could abandon his identity, but then again so could criminals today, and they are quite often unsuccessful. He could still be found, in all probability. Additionally, because he caused the need for the expense of finding him, the burden of finding him would fall on him if caught, which would do little to encourage escape.
My expectation is that the best means of deterring crime is to ruthlessly enforce restitution, including the price of enforcement. This would condemn habitual criminals to a life of poverty, rather than merely letting them live at society’s expense in prison.
I think you’re hopping to some pretty unwarranted conclusions, Bostwick. I’m an anarchist. I think the state is immoral. I don’t endorse prisons. It seems that either you are making some rather cavalier assumptions here or that you have a highly idiosyncratic understanding of the term “vengeance.” Vengeance is simply retributive punishment. It can be directly executed (i.e., you punch me in the face; I punch you back and require you to pay for my medical bills) or indirectly executed (my protection agency or insurance company charges you double my medical bills, half for my restitution, half for punishment). Vengeance and restitution are not mutually exclusive, nor does the former necessarily have priority, whatever that would mean, over the latter.
In fact, I really like the restitutional/retributive system of the Torah: if someone murders your brother, you can be the “avenger of blood.” The murderer is now an outlaw, and you’re publicly recognized as the one to go kill him if you want. No executive branch necessary.
I am inclined to believe you, but this is a point at which I in my thinking have reached an impasse. Do you have any specific reasoning for concluding that restitution should be double, half as restitution and half as punishment? Although the Pentateuchal law (still my model of an essentially anarchist society) may contain some insight, as the avenger of blood was not permitted to exact a blood-price in the Welsh fashion, but I still have uncertainties applying this to property harm.
How do you justify your claim to be entitled to both reparations and retaliation? I assume we all agree on the validity of proportionality in sentencing. Yet you seek two seperate sentences, both “equal” to the crime.
Any “revenge,” in order for it to be moral, must be passive. To forciably deny food to a criminal who has already made attoinment is to commit a new crime. Yet every person is free to choose to not trade with a convicted criminal, even if it would mean his death.
We are Libertarians and (Rothbarian) Anarchists because we reject violence and coercion as a means to an end. If you want an anarchistic judicial system, it must be based on the same morality and freedom of association that anarchy is based on.
The whole punching in face story lacks detail. Where are we when you punch me? Let’s tell three stories:
You punch me in the hallway in front of my apartment. I kick you in the balls and run into my apartment to call security. Security shows up, and escorts you out, letting you know that you are no longer allowed to visit people at my apartment complex, and security will use appropriate force to keep you from doing so.
You punch me in the face on the street in front of my daughters school. I kick you in the balls and run into the school. I call the schools security service. They show up, and escort you away, letting you know that you are no longer welcome near the school. Appropriate force will be used if you show your face on their cameras again.
You punch me in the face on the side of the road in the desert next to my car that has run out of gas. I shoot you with the gun in my glove compartment and continue waiting for AAA.
Basically, civilisation can have order without law. Whenever I am surrounded by institutions with contractual ties to me, I am safer than in the wild. If they also have contractual ties to you, they may atempt to arbitrate the situation, or, if one side refuses, they would probably sever ties with the refusing side to keep business running well.
Outside of civilisation, weapons are the best defence.