Dispute Resolution System in a Libertarian Society

Economics Political Theory
81

It is the same question I posed in my opening post. I have read your posts. I do not think you have responded to my question at all. Your responses have been critiques of what others have written. I just do not see how you have tried to address my question.

Your last statement, to me, indicates that you do not yet understand the question I am asking. None of what I have said about the current legal system’s ability to compensate an injured party has anything to do with US criminal law. While some states have developed a system that allows the criminal courts to order a convicted criminal to pay restitution/compensation to the victim, the amount of the compensation is rarely sufficient to truly compensate the victim. The courts are also not usually very good at enforcing the payment of restitution. I agree whole heartedly that sending a criminal to prison and forcing him to pay fines to the state is not much compensation to a victim.

A criminal justice system like the one we have in the United States would not exist in a libertarian society. My question is focused on contract disputes and tort cases (intentional and negligent). These cases involve private parties using government courts to resolve private disputes. Most of the law that is used to resolve these types of disputes now is common law, or judge-made law. I think judge-made law would continue in a libertarian society. So, the production of law in a libertarian society is not really a concern I am trying to address here, although it is of interest to me. I am also not trying to address conflicts of law, that is, which judge’s, PDA’s or security firm’s law will apply. Common law courts have dealt with this issue for years. I think much of that law will continue in a libertarian society as well. So, the various posts, including some of yours, that have addressed these issues are useful and interesting, but do not really address my question.

My question is centered on how the private courts will enforce their judgments against a party that refuses to voluntarily participate in a dispute resolution process or honor the court’s decision. One general answer seems to be that the courts will not have similar power to government courts to enforce judgments. Most people will voluntarily honor court decisions because it is their best interest. The threats of ostracism and outlawry will encourage others to honor court decisions. Those who refuse to submit will be few. The system will not be perfect and not every victim will be compensated. This is not a bad answer to my question. I do not think the concepts of ostracism and outlawry are silly. There are effective and are even part of the current system.

But are there other thoughts? Would courts be able to use physical force to enforce its decisions? I am inclined to think they could. I think this would be an exercise of an individual’s right to self-defense. I think that if a man hit me with his club, knocked me out and took my property, that is committed battery and theft (intentional torts) against me, then I am entitled to use force to retrieve my property. So, I think a court could do the same.

So, with respect, I do not think you have addressed my questions at all.

82

One trick I use to keep myself thinking straight when reasoning about courts in the absence of a state is to think always of court decisions as a service which is bought and sold on the open market. I think most of your open questions are answered simply by this.

I think the idea of courts enforcing their own decisions only makes sense under a territorial monopoly of law (State). In a free market of law services, courts would not be interested in entangling themselves into any of their clients’ affairs. A decision offered by a court would be of the form, “This is what this court believes to be the right course of action under the applicable laws and, further, this court doesn’t believe you would get a significantly different verdict if you bought a second opinion.”

Well, if two parties paid money to have a court hear a dispute, the assumption is that they really preferred to have the matter settled in a civilized manner rather than battling it out on the street.

I don’t think courts, themselves, would want to take on the legal liability entailed in enforcement. If I were a judge, I would have enough worries of being sued for my decisions if someone thinks they can prove I was biased or bribed, etc. Let someone else take on the legal risks of enforcing court decisions.

Well, I think a court would only go so far as to say you are, in fact, entitled to use force. At that point, you can do the work yourself or hire someone to do it on your behalf. Essentially, you need the court to assess your legal liability and to help you understand what the consequences of your actions will likely be. If you just charge in and seize your stuff back, you may unwittingly commit a crime and, in the process, open yourself up to greater losses than the value of the property you had hoped to recoup, which would be self-defeating. So, repossession has to be done lawfully, as well.

Clayton -

83

No.

No.

Ostracism and common law courts would be a good start.

It would be really helpful if you could make your responses a little more brief. They are a lot of reading.

84

I think that by becoming outlaw, that allows someone to hire an agent or to retrieve property themselves with force. What claim to protection from force would an individual have, who refused to answer charges made against him by another party?

I steal from you. You take it to the common law court. I refuse to show up, or I show up and refuse to make restitution, regardless of the jury’s decision. I have dishonored myself with the court and the jury. I am no longer protected by them. I am on my own. I am now outlaw. And anyone using force against me, cannot be taken before that court and charged with a crime, because I have already dishonored that court.

85

You’re wrong.

You’re wrong again.

86

Apparently you missed this one. It was my very first post in this thread. So, in fact, I did respond directly to your question.

On the other hand, when I asked whether none of the many responses have been satisfying to you, I wasn’t talking only about my own posts. I was talking about everyone’s answers to you in this thread. Sorry for the misunderstanding.

Okay, then mea culpa for misunderstanding you. When you wrote that “[o]ne of the benefits of the current law and legal system, at least in the United States, is that there is a strong likelihood that an injured party will be compensated”, you didn’t seem to be making a distinction between an injured party in a civil case and an injured party in a criminal case. I stand corrected at this point. Thanks for the clarification.

Apparently, then, you don’t find ostracism and outlawry to be completely satisfying. Is that a fair statement to make?

With both your initial question and your rephrasement of it, you don’t seem to have made clear what you’re really looking for. From what I can tell, you’re looking for ideas/explanations on how courts, and/or agents acting on their behalf, could or would be allowed to use physical coercion (i.e. the use or threat of violence) to enforce their judgements. I appreciate you taking the time to clarify your question.

I think it’s certainly possible that courts would be allowed to use some amount of physical coercion to enforce judgements they’ve made. However, I suspect it would be the very last resort. The amount of physical coercion allowed would also tend to be minimized, if only to prevent having to pay restitution for aggression against the incalcitrant individual.

Having read many, many stories involving police brutality, it seems to me that the issue is one of “excessive force”. Many (if not most) people seem to have a rather intuitive understanding of the concept. It bothers them when they see instances of excessive force go “unpunished” – that is, no restitution or compensation is made to the injured parties. The system we live under today, which prohibits free markets in protective and dispute-resolution services, leads to the proliferation of such situations. At the very least, holding an “ultimate monopoly” in these areas makes it easier for (would-be) abusers to capture it.

I hope this helps. Sorry again for the misunderstandings.

87

So, Clayton, what I think you are saying in answer to my question is that in a libertarian society physical force may be used to enforce court decisions. This is all that I am trying to get at.

You are uncertain that the court or judge would be the person to actually exercise the physical force. Instead it may be up to the individual party or some other agency that offer enforcement services to exercise the physical force. This is the beginning of an answer to the follow up questions on how that physical force would be exercised and limited. Not really trying to discuss these questions, yet.

Just want answers to the first question of whether physical force to enforce laws and court decisions would be part of a libertarian society and how that is consistent with the non-aggression principle.

88

Sorry, Liberty Student, I will try to be brief. I wish I knew how to create the little block quotes that so many of you use. It would help me to be brief. How do I do that?

89

Liberty Student, I think you are giving me the same answer as Clayton. Physical force is available to enforce the law and court decision is a libertarian society.

You also begin to address the next questions of how that force is exercised and controlled.

90

Scineram, not sure what you or Liberty Student are saying your answers.

91

Did you not state that law is a means by which people have come about a peaceful resolution of problems as an alternative to violence?

You now pose the question on what would happen in a “panarchist” society if one chooses not to participate in the application of law.

Choosing not to participate in the law means the individual has declared himself to be outside the law, or outlaw as it is commonly referred to.

Being outside the law means that others are free to use violence against the outlaw, who is without the protection of the law, but really no more so than to recover damages they have suffered plus expenses.

Taking that a step further, there’s nothing to say that a person could not grant a court, or other entity who is more capable, the permission to restore one’s property and all expenses associated with its retrieval.

These details get worked out via the free market rather than by some decree by a court or government that gives itself any power over anyone or anything.

I’m sure given that courts are fallible in any society people may choose a structure that allows for a means to appeal decisions. In addition, there is nothing saying that people will choose one and only one court, and from that courts will need to determine methods of coming to decisions across the entire society.

It is also a given that under a “panarchist” society there will be far fewer rules and restrictions that drive the use of the court system compared to our present system. That claim is probably also true for the minarchist society, although not necessarily.

Simple changes, like having the losing party pay for all of the court costs, have significant ramifications that effect how the courts are used.

To answer your question in simple terms:

In a “panarchist” society a court has no right to use force or coercion to recover property of another unless the rightful owner has granted his permission to do so and the other party has voluntarily exercised his right to place himself outside the law. The use of force must be proportional to be valid.

92

Autolykos, I did not miss your first thread. I have read it several times. Yes, you did respond to my post directly, but you did not answer my question there. Your first post outlines various incentives that would encourage a party to voluntarily submit to a court and to honor a court’s decision and the law. I premised my opening post by stating that I understand the general idea that people will voluntarily choose their own courts. What I am trying to get at is, when those incentives fail and a person refuses to voluntarily comply with the law, is there room for the use of physical force to enforce the law. I do not see how you directly answered that question.

If I wanted to guess what your implicit answer was to that question, I would have surmised from your first post that your answer would be no. But, now having read your most recent post, I see that I would have been wrong.

No, from what I understand at this point, I do not find ostracism and outlawry to be completely satisfying. They are another type of incentive (a negative incentive, if you will) that encourages voluntary compliance with the law and courts. As I have stated, I think this is a very effective incentive and as I study it more, I may become more satisfied.

My question is about the use of physical force in a libertarian society to enforce the law and court decisions. I think you have now understood my question and have answered it. (I am sorry for the lack of clarity. I strive to be brief and clear, but fear I fail at both sometimes.)

You, Clayton, and Liberty Student all seem to agree that yes physical force to enforce the law and court decision would be allowed in a libertarian society. You all seem hesitant in your answers, however. I sense your hesitation is rooted in a deep concern for the abuse of that power. I share that concern. Controlling the exercise of that power is for me a different issue. I am trying not to conflate the two. Thanks for your responses.

93

Yes, I do think that.

Correct - and I think that we can point to some examples of stateless or nearly stateless societies to give evidence for that (early American West, Medieval Iceland and Somalia).

I’m not aware of any society, except perhaps the Amish, where violence may not be used for reasons other than the fending off of physical aggression in the moment that it is occurring. This is why, I believe, most people have an intuitive gut-feeling that there’s something missing in the NAP. The NAP derives the moral legitimacy it has because it is consistent with human nature (whoever starts a fight is in the wrong, if the other person is truly trying to just mind their own business) but the problem is that it is only consistent with human nature in a subset of human action, it is not a universally applicable principle (it’s easy to derive absurd examples from the NAP). So, to me, the real criteria of moral legitimacy lies within human nature itself… what justifications for the use of violence do humans generally find acceptable? This question is not easy to answer and I think that part of the difficulty is that there is no analytical method for discovering the answer, for reasons similar to why there is no analytical method for discovering the correct price of apples.

I think there is a spectrum of positions on this. You have the Roderick Long-esque types who border on Amish pacifism, basically, no one can ever justify the use of any violence except to fend blows from their corporeal body. This is highly problematic and I think ultimately incompatible with human nature. Then you have the Rothbardians who admit some further uses of violence but only to the extent of double the original damages that were done… two eyes for an eye, two teeth for a tooth, if you will. Then there is Stephan Kinsella’s “estoppel approach” which takes an old-fashioned legal argument and attempts to derive a sort of NAP from that. Interestingly, Kinsella’s approach admits the potential for the use of (justifiable) retaliatory violence. But I still don’t like his argument because I don’t feel like it really gets to the root heart of the matter (the choice between physical fighting or rational argument).

My position is that the NAP is just a good first-order approximation of our intuitions regarding justifiable violence. The NAP is particularly useful in criticizing government policy since almost no government policy is actually justifiable, if such a matter could be argued in a fair forum (somewhere other than the government’s courts). However, I believe the NAP breaks down where it fails to address the punitive aspect of human society. Punishment (retaliation) has evolved even in animals other than humans, and there is, of course, ample evidence of punishment between humans. Humans have, like other animals, an involuntary emotional response that signals our likely intent to violently retaliate and it is clear that this response evolved in order to discourage others from doing whatever it was they were doing that triggered that response. A simple evolutionary argument can be made that human societies in which this response was adaptive to human survival reproduced more successfully than those in which it was not. So, the things that people are willing to retaliate against one another were adaptive to our survival. That doesn’t mean that they are adaptive in today’s environment but I think it opens the question of what the purpose of retaliation in the abstract is.

I’ve adopted some of David Friedman’s approach to answering this question. Basically, we can think of everyone’s actions as having positive and negative effects on everyone else. A basic principle of economics is that when the benefits accrue to the decision-maker but the costs are borne by someone else, the decision will be made too frequently, and vice-versa. Of course, whenever this re-mapping of costs and benefits between decision-makers and non-decision-makers occurs, there is an implicit conflict of interest. However, the threat of retaliation is a way to “internalize” the costs of decisions which benefit the decision-maker yet impose costs on others. For example, if you seduce my wife while I’m away hunting and I come to find out, I may kill you. The costs of your actions are the potential that you will cuckold me with your offspring. The benefits, of course, all accrue to you. The fear that I will likely retaliate against you out of jealous rage if I come to find out helps internalize the costs of cuckolding. You may be better off, evolutionarily speaking, waiting for your chance to have one child for sure with an available woman than die trying to cuckold me or someone else.

This will not help us answer the question, “How much retaliation is the right amount?” in any particular case. I think only common usage can answer that question. The right amount is that amount which has been customarily acceptable (with the understanding that customs can change over time and from place to place). I can’t argue “I have a right to retaliate because, if I were not allowed to retaliate, the costs that people who make decisions like John did when he hurt me will be unmitigated.” An acceptable argument has been (in history), “Whenever someone kills someone else’s cow, it is customary that he repay two cows in return, so I expect John to repay me two cows.” Whether the additional cow is “restitution” (Long) or “cannot be argued against by the doctrine of estoppel” (Kinsella) or “violation of rights to the same extent” (Rothbard) or “retaliation” (my view) is immaterial, I think. In any case, we have to differentiate between the why of retaliation in the abstract and the why of retaliation in the particular.

I have a rough draft paper that discusses some of this, I would be happy to forward it to you.

Clayton -

94

KC Farmer, I think I understand what you are saying. Courts themselves would not use physical force. Courts would only rely on voluntary compliance. But, if a person did not voluntarily follow the law or honor court decisions, then physical force could be used against him. While those who exercise this physical force against the outlaw should only use proportional force, the outlaw has no recourse to the law or the courts if the force is non-proportional. The threat of force, unregulated by the law, will be an incentive, like ostracism, to encourage voluntary compliance.

Is this what you are saying? Isn’t the practical effect of this the same as saying that the law and court decisions will be enforced by physical force?

95

Lyle D. Riggs, I can appreciate your point about precision in terminology. Almost all of my experience with Libertarian philosophy/thought has been through Milton Friedman, so I do have a quite narrow experience set from which to draw.

With that said, I think it is unfortunate that the term Libertarian could possibly mean anarchist. I, personally, would have hoped the two terms remained separate. I saw instances of people hearing Milton Friedman’s views, and then claiming that he has no role for government. He was quite fervent in responding that the government should have responsibilities including law creation, law enforcement, settlement of disputes (gov’t court system), and national defense.

You are correct that my terminology did not take into account all people’s views on the word “Libertarian.” However, I do firmly believe that someone can believe Friedman’s views on gov’t responsibilities and be considered a Libertarian. To believe that government is entirely voluntary would be an anarchist. I think the two terms should be quite separate.

Apologies if this is a very basic example (or if it has been covered already), but has national defense of a Libertarian state been addressed? Surely this would have to be a governmental function that is not funded by voluntary participation. What if 50% of a population supports creation of a national defense team and 50% do not. If the team ends up defending the state, the 50% who chose not to fund the team get defended just the same as those who did fund the team. Any good that is a “public good,” a good where the providers cannot provide only to the select people who funded it AND benefit from it, would need to be supported by governement (compulsory government).

Again, sorry if the national defense example is repetitive or too basic.

96

Clayton, I would love to read your draft paper. Thanks for your continuing responses.

97

My view of a natural order is that there is never any such thing as true outlawry… anyone may apply to any court which is willing to hear their case, regardless of their past history. However, outlawry would emerge as a de facto state of affairs when no party is willing to go to court with you because you never abide by decisions or because you’re a heinous murderer or whatever. Outlawry occurs when anyone would rather take their chances against you in direct violent conflict than go to court.

Family plays a huge role in this since, in my view, it is family that is the “engine” of legal liability. It is the family who will sue if someone is wrongfully killed. Let’s say Wild Bill has been going around shooting up saloons and killing innocents. Very quickly, word spreads and the word on the street is “if you see Wild Bill, shoot him before he shoots you.” After Bill turns up in some hole in the wall town, getting drunk and causing trouble, Trembling Tom takes the chance to shoot him in the back, ending Wild Bill’s rampage and garnering a little fame for himself, too. Now, everybody knows Bill was shot by Tom without any good reason on Tom’s part aside from Bill’s reputation as a brawler and murderer but, then, nobody really cares, so nobody takes any action against Tom. However, Wild Bill’s mother is grieved at the loss of her precious son, who never did anybody harm, and she sues Trembling Tom. So, now Trembling Tom must offer a justification for why he shot Wild Bill. Hence, legal liability for one’s actions comes, in my view, primarily from family.

Clayton -

98

I sent you my email address in private message. Let me know if you have problems emailing.

Clayton -

99

I just love it when I craft a thorough response only to have it lost in the server backwash… 2nd attempt:

Lyle D. Riggs wrote:

KC Farmer, I think I understand what you are saying. Courts themselves would not use physical force. Courts would only rely on voluntary compliance. But, if a person did not voluntarily follow the law or honor court decisions, then physical force could be used against him. While those who exercise this physical force against the outlaw should only use proportional force, the outlaw has no recourse to the law or the courts if the force is non-proportional. The threat of force, unregulated by the law, will be an incentive, like ostracism, to encourage voluntary compliance.

Is this what you are saying? Isn’t the practical effect of this the same as saying that the law and court decisions will be enforced by physical force?

You are missing a few key points.

Person A violates person B’s property, a clear act of aggression. By the NAP B has the right to take it back, and A does not have the right to stop him otherwise A is escalating the crime. This doesn’t mean B is allowed to burn down A’s house, rape his wife, or kill A. B will have sense enough to demand from A the return of his property in order to avoid escalating the situation. A is not willing to return the property, but agrees with B to take the case to court.

A and B pay the required fees to the court to hear the case, and may hire their own representation if they believe it will help them. The case is heard by the court and the court decides that A did indeed violate B’s property. The court rules that A must return the property to B. The court has no rights beyond being paid to render a judgment.

Enter your scenario. A, who was determined by the court to have violated B’s property rights, has decided to renege on the agreement to abide by the court’s decision. He already has paid $X to the court, and now must pay $Y to B to cover his court costs plus restore the property in question to B. He’s now decided to up the ante by refusing to accept the judgment. Unless both parties had agreed to an appeals process, A has essentially placed himself outside of the law. B may now collect as the NAP allows not only his property but also the court fees.

B decides to hire an agent to collect his property from A. The agent costs money, but those costs will be recovered from A. A is now back to his original choice to hand over the property, but now has a lot of extras attached. In addition, other people have started to lay claims against A of potentially more expensive property, like his house. Having abandoned the court’s decision, A has brought upon himself more harm than good. All this without even so much as a threat of force from anyone. This is the dumb version of A.

The psychotic version of A pulls a weapon and is killed during the recovery of the property.

The incentives are that it costs less to respect other people’s property rights than to engage in the foolish behavior of A. No government was required. The use of force or the threat of force was not required.

So no, the practical effect of this is not the same as saying that the law and court decisions will be enforced by physical force. If A initiates force, then things could turn out worse for him than they already are.

Can the collection agent be the court? Possibly, but who would want to have that direct conflict of interest? It’s more likely that under the two party’s agreement to take the case to court they have identified a collection agent in the event one of the parties reneges. This would be like an insurance policy, and would probably be the way to go for the average person who may not be able to pay the full price to recover their property (although the collection agent would recover costs from the party in the wrong). The contract itself would probably be arranged by the lawyers representing the parties in question. The court only comes in to hear the case and render a decision. The only reason the courts have the power they have in the present system is because the government has made it so - most likely to protect the government’s own wrong-doing.

100

Well, I thought I had directly answered it with the following paragraph:

Here I was basically talking about ostracism and/or outlawing, without actually using those terms (since some people consider them to be “loaded”). Along with that, however, is the possibility of “harassment”. From what I understand, collection agencies can be quite “harassing” in their repeated phone calls and other contact attempts to try to collect on debts.

Again, it seems like we misunderstood one another at least partially. Based on your OP, I didn’t see that you were really asking about physical coercion. Maybe that’s because I don’t necessarily think of physical coercion when I hear or see the word “enforce”. :stuck_out_tongue:

I think that’s good and I definitely recommend studying it more. :slight_smile:

No worries. You’re not the only one who feels that way. :slight_smile:

Ah, I see now. Most people readily conflate the two – especially non-libertarians!

For me, it’s not only a matter of abusing power. There’s also what I see as the moral question of where a retaliation crosses the line into aggression. You’re right, of course, that which mechanisms can best protect against crossing that line is a separate issue.