How Courts and Police Could Exist and Function Under Anarcho-Capitalism

     A powerful objection to anarcho-capitalism is that judges, acting in  their self-interest, will simply rule in favor of the highest bidder.  This is the objection I will attempt to address, and in so doing, come  up with a theory of how and why justice will be served and property  protected in an anarcho-capitalist country.

     In order to discover the functioning of judges in anarcho-capitalism,  one must start from the beginning. Some, if not most, people desire  their property to be protected. These people will be willing to exchange  their goods or services for this protection, leading to the formation  of private defense agencies, which would act as a private police force.  We already have a situation where government police have gotten so bad  that people are turning to various forms of private policing:  bodyguards, security systems, and security guards. These private defense  agencies (from here on referenced as PDAs) will tend to provide the  most security at the least cost (the exact opposite of government  police), and their reputation will be of the utmost importance; if they  got a reputation for either protecting criminals or poorly defending  their customers, the customers would patronize a different agency. It is  also in their interest not to protect criminals from prosecution  because doing so would lead to more crime — something that would drive  up their costs and lose them customers to agencies that actually protect  people. A PDA will not only be wanted to defend people while an act of  aggression is occurring, but will also be desired to exact restitution,  which means that an equal amount of force that the aggressor used  against his victim can be justified by the victim against the aggressor.  Take, for example, the case of a theft. A takes $5 from B. According to  libertarian theory, B can defend his property by taking his $5 back  from A and he is justified in taking an additional $5 of A’s money,  along with the cost of the time it took to get this money and the  expense it took to get it. In order for a PDA to maintain an excellent  reputation and to ensure that it will not get into any battles with  other defense agencies (which would be very costly), the PDA would make  sure that a person accused of a crime actually committed that crime, and  that the amount of restitution to be exacted is just. This is the role  of judges — the difficult job of proving to everyone that either a  person accused of a crime is guilty or innocent, and what a just  compensation to the victim (if there is one) is. Judges would compete  with each other in terms of their reputation for producing thorough and  convincing judgements, and would lose customers for providing poor or  corrupt judgements (which, if obvious that the judge was corrupt, or had  judged wrong, would be considered invalid and ignored). The purpose of  judges is not to provide justification for the use of force, but only to demonstrate  that a use of force is, in fact, justified (or not). Whether a judge  worked for a PDA or had a private practice or belonged to a judging  company (private court) would be immaterial. In order to demonstrate  fairness, a process of appeals could exist and may work like this: A  accuses B of committing a crime, then the judge of A’s choosing either  rules B innocent, in which case the process ends, or the judge rules B  guilty, in which case B could appeal to a second judge. If the second  judge rules B guilty, the process ends, but if the second judge rules B  innocent, A could appeal to a third and final judge that is agreed upon  by both the first and second judge, or both A and B. The cost of the  judging service would go to the loser of the court case, which would  mean that if someone is obviously guilty or innocent, the person who is  going to lose the case would not want to increase his or her costs by  appealing a judge’s (clearly correct) decision. Of course, if someone  was undisputedly guilty and the restitution owed was undeniable, a judge  would not be necessary. I have thus sketched a rough outline of how  anarcho-captialistic police and courts could work, and will go on to  address a few objections. 

     A common objection to anarcho-capitalisim made by minarchists  (small-state libertarians) is that “justice” is some kind of a public  good and no one has a desire to produce it while everyone wants it, so  it must be provided by a government. This assumes that public goods  exist, and that they should be provided by a legitimized institution  with a monopoly on the use of force, or, in other words, a state. The  theory of public goods have been demonstrated false in this article by Hans-Hermann Hoppe, this article by Walter Block, and this article by Randall G. Holcombe. Furthermore, as I demonstrated above, it is in  everyone’s self-interest to both enforce and obey the non-aggression  principle, and both police and courts could be provided on the free  market. 

     Another objection goes like this: all this is well and good for  customers of PDAs, but what about the provision of justice between  individuals not belonging to PDAs? Wouldn’t conflicts between  non-customers of PDAs simply devolve into fights to the death? I can  answer this in two different ways; first, I could say that if you don’t  pay for justice, why would you expect to receive it — it’s like any  other service! Second, I don’t think that this would be the case because  1) anyone who wanted to could arm themselves with weapons, discouraging  anyone from committing acts of aggression against each other, and would  allow for individuals to enforce justice even without a PDA, and 2)  people who were criminals or were thought to be criminals would be  ostracized; in the interest of keeping themselves and their  friends/family/customers safe, people would forbid those whom they  thought were criminals from entering their property. As a side note,  there would probably be very expensive and very secure stores and  housing that would be specifically for blacklisted criminals. Therefore,  if you don’t belong to a PDA and someone aggresses against you, you  still would charge the aggressor in a court instead of just showing up  at his house with guns, taking back your property and taking some of his  money, because you wouldn’t want the public to believe that when you  were enforcing justice you were acting as an aggressor. So yes, in an  anarcho-capitalist country, you could provide your own protection, but  would still usually make use of courts. Also, I think that the wide  availability of weapons, ostracism, and the relative absence of poverty  under anacho-capitalism would be very effective at discouraging crime  from occurring. 

     A further objection is that a PDA would simply take over and become  the government. Even if this were the case, and I think that this would  be very unlikely to happen, then we would be in the exact same situation  that we’re in now, so we have nothing to lose! The thing to keep in  mind here is that under anarcho-captialism, there is no legitimized  institution with a monopoly on force, and that any prospective  government would inevitably have to convince the populace that it is in  their interest to have a government. The reason for this is not readily  apparent, but is the case; if the government is not legitimate in the  eyes of most of the people, then people will tend to defend themselves  from that government because it is in their interest to do so. The  government can only use the resources that come from the populace, but  if the source of those resources, the productive citizenry, are  mobilizing those resources to defend against that state, then that  government will not be able to continue in its existence. It can either  kill everyone, and lose all its funding, or it can battle everyone and  eventually lose, expending all of its remaining resources to survive.  The reason for this is as follows: the state expends resources on  suppressing a revolt, but can’t get those resources back because the  very resources they want to take are being utilized to resist them. This  leads to the state having decreasing funds which are consumed in its  bureaucracy and in the course of fighting a war on its people, while the  productive populace keeps on producing funds and resources with which  to defeat the state. Note that this only works if the vast majority  reject the state in favor of anarcho-capitalism. This is the reason that  it would be unlikely but not impossible for a state to arise out of  anarcho-capitalism; only if someone were to come along and convince the  bulk of the people that they would benefit from a government, which,  under anarcho-capitalism, would be almost impossible to do for the  obvious reason that a state is not beneficial, and the people would be experiencing that fact first-hand.

     In conclusion, the state is not necessary for the provision of  justice, and, being the monopoly that it is, has no reason to  provide  the best service at the lowest cost like the private courts and PDAs in  anarcho-captialism, but to provide the least service at the highest  cost. Furthermore, the state is inherently immoral, and therefore should not exist.  Any question as to how a society would function without one is a purely  technical question and is not relevent to the question of whether or  not the state should exist. However, as I have written above, society  would (surprise surprise) be much better off (and have a better  provision of justice) without a state and with a purely voluntary method  of protection. 

                                                                              Further Reading

                              The Market for Liberty For a New Liberty: The Libertarian Manifesto