When Courts Compete for 'Business,' Liberty Wins

Those who insist that market anarchism cannot work because it lacks a monopolistic court of final jurisdiction are wrong.


Amauri Henderick/Flickr

Considering that what liberty we continue to enjoy in the West is a product in large part of competing legal institutions operating within overlapping jurisdictions hundreds of years ago, it's curious that so many libertarians still believe such an order—an essential feature of free-market, or natural-law, anarchism—would be inimical to liberty. Why wouldn't that which produced liberty be up to preserving it?

When I say that competition produced liberty, I of course do not mean that liberty was anyone's objective. Yet liberty emerged all the same, as if by an "invisible hand." That's how things often work. Good (and bad) consequences can be the result of human action but not of human design (to use a favorite phrase of F. A. Hayek's, which he borrowed from the Scottish Enlightenment thinker Adam Ferguson).

We should be delighted to know that something so wonderful as liberty can emerge unintentionally. It should give us hope for the future; if the libertarian movement is deficient, we need not assume that liberty has no chance. (I have more to say about liberty as an unintended consequence in the context of Magna Carta here.)

Many authors from the 18th century onward have written about the unintended good consequences of competition, i.e., the absence of central control. They emphasized that in the West the rivalries between church and state, between nobles or parliament and crown, and between nation-states yielded zones of liberty that endure to this day, however diminished in particular matters. Competition among legal institutions—courts and bodies of law—within overlapping jurisdictions played a large role in this centuries-long beneficent process. These of course are not examples of anarchism; on the contrary, states existed. But competitive overlapping legal regimes are an element of market anarchism. So where a state coexisted with a polycentric legal order, we may say, with Bryan Caplan, that there existed "less than the minimum" state, that is, something that fell short of the nightwatchman state favored by limited-government libertarians.

A good place to read about competition in law and dispute resolution is Todd J. Zywicki's highly accessible Northwestern University Law Review article "The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis." An important feature that "influenced the common law's evolution," Zywicki writes, "was the competitive, or 'polycentric,' legal order in which the common law developed. During the era that the common law developed, there were multiple English courts with overlapping jurisdictions over most of the issues that comprise the common law. As a result, parties potentially could bring a particular lawsuit in a variety of different courts. In turn this created competition among these various courts for business."

The idea of courts competing for "business" sounds strange to modern ears, but it was commonplace before the 20th century. (The extent of private arbitration in international commerce is largely unappreciated.) Zywicki's paper shows that the common law, which featured this competition, was efficient in the eyes of those who used its services. Monopoly is inefficient even (especially?) in matters of security, dispute resolution, and justice. Moreover, it's a mistake, as Hayek explains in Law, Legislation, and Liberty (volume 1)  to assume that government is the source of law.

Moves away from competition and the common law, then, aren't adequately explained by shortcomings in its services to its consumers. Political ambition provides a more satisfactory explanation. (In the case of the criminal law, see this.) 

Zywicki draws on the legal historian Harold Berman, who wrote, "Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems."

The legal philosopher Lon L. Fuller went further: "A possible objection to the view [of law] taken here is that it permits the existence of more than one legal system governing the same population. The answer is, of course, that such multiple systems do exist and have in history been more common than unitary systems." (Emphasis added.)

The limited-government libertarian who insists that market anarchism cannot work because it lacks a monopolistic court of final jurisdiction is like the apocryphal aerodynamicist who calculated that a bumblebee couldn't possibly fly. One needed only to point out the window, saying, "Behold!" Likewise, the anarchist need only point to history.

Berman also wrote (quoted by Zywicki), "The same person might be subject to the ecclesiastical courts in one type of case, the king's courts in another, his lord's courts in a third, the manorial court in a fourth, a town court in a fifth, [and] a merchants' court in a sixth." This sounds as though the courts were not really competitive, but rather that the variety of courts constituted specialization and a division of labor. But that inference would be wrong. To see this we may turn to a keen contemporaneous observer, Adam Smith. In The Wealth of Nations Smith notes that despite a de jure division of labor, courts in fact competed with one another, even to the point of entrepreneurially finding ways to lure cases from other courts.

Why do this? Because the courts obtained their revenues from fees paid by parties to cases. The more cases a court heard, the more money it earned, a state of affairs that Smith, no anarchist of course, approved of: "Public services are never better performed than when their reward comes only in consequence of their being performed, and is proportioned to the diligence employed in performing them."

Smith described the legal environment of his day:

The fees of court seem originally to have been the principal support of the different courts of justice in England. Each court endeavoured to draw to itself as much business as it could, and was, upon that account, willing to take cognisance of many suits which were not originally intended to fall under its jurisdiction. The court of king's bench, instituted for the trial of criminal causes only, took cognisance of civil suits; the plaintiff pretending that the defendant, in not doing him justice, had been guilty of some trespass or misdemeanour. The court of exchequer, instituted for the levying of the king's revenue, and for enforcing the payment of such debts only as were due to the king, took cognisance of all other contract debts; the plaintiff alleging that he could not pay the king because the defendant would not pay him. In consequence of such fictions it came, in many cases, to depend altogether upon the parties before what court they would choose to have their cause tried; and each court endeavoured, by superior dispatch and impartiality, to draw to itself as many causes as it could. The present admirable constitution of the courts of justice in England was, perhaps, originally in a great measure formed by this emulation which anciently took place between their respective judges; each judge endeavouring to give, in his own court, the speediest and most effectual remedy which the law would admit for every sort of injustice. [Emphasis added.]

Zywicki also quotes from Smith's Lectures on Jurisprudence:

Another thing which tended to support the liberty of the people and render the proceedings in the courts very exact, was the rivalship which arose betwixt them.

It may be argued that the state provided a backdrop to the competitive legal order, such that a forum of last resort was always available. This argument loses its force, however, when one realizes, as Edward Stringham teaches, that private dispute-resolution procedures arose in matters where states abstained from involvement, such as the nascent stock markets. (For more on the weakness of the "shadow of the State" argument, see this.)

"In short," Zywicki sums up, "a market for law prevailed, with numerous court systems competing for market share in order to increase their fees. This competitive process generated rules that satisfied the demand of consumers (here litigants) for fairness, consistency, and reasonableness." 

Bumblebees fly and reasonably pro-freedom dispute resolution emerges without the state, no matter what a cloistered theoretician may think.

This piece originally appeared at Richman's "Free Association" blog.

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  1. Interesting perspective. I knew most of this legal history already, but in the context of church-state squabbles for control. Hadn’t taken the next step to see that its unseen consequences were once again more interesting than the surface appearance.

  2. The downside to the competing court mechanism is that there were many people who couldn’t pay left without recourse. That is what the unity of a centralized and government-funded court was meant to abolish. For awhile, it did.

    But the pay-to-play is back in the form of one party keeping a dispute out of court in the first place, and usually exists as a power differential based on money.

    My view is that one of the legitimate uses of force by the government is to keep the free market equal between parties in all transactions, including in disputes. A monopoly, while I have no care that one exists, shouldn’t be able to exert its influence to either ignore any law in their favor nor triple the price of apples for a specific client. This is why I support the government civil court system.

    1. This is not a good excuse for thieving taxes. Our court system is hardly free when the legal costs force almost all criminal defendants to plea bargain, where the government can outspend any defendant it really wants to railroad.

      Your worries about monopolies are overblown and ignorant. Almost all lasting monopolies are so due to government interference, such as regulations designed by cronies, patents, onerous regulations which only the biggest companies cn afford, etc. The usual litany of monopolies is lies spread by progressives. The breakup of Rockefeller’s Standard Oil, for instance, was instigated by a muckraking packet of lies told by the wife of one of his incompetent competitors, and came after his market share was already declining from its peak, due to his own mistakes and the growing competence of his competitors.

      One of the simplest ways to make courts fairer, beyond competition, is loser pays, which would actually make things easier for poor claimants at the expense of rich ones, because a good case would attract contingency fee lawyers who know that rich losers can afford to pay and aren’t willing to suffer the consequent loss of reputation and trust if they fail to pay.

      There is never any excuse for government coercion. Any scenario which looks like that should trigger a fall back to principles to show where an analysis went wrong.

      1. I explicitly said I don’t care about monopolies, but that somehow means that i “have worries”? You’ll note that both of those practices that I mentioned are done by businesses without monopolies. And, yet, you rage against “my worries” about them.

        So, you know, good luck with arguing with yourself about things you imagine people say.

        As for “loser pays” that is actually exactly as unfair in the same way that I noted: Power differential via money, it just takes a slightly different path. “Contingency fee” lawyers already exist. We call them “ambulance chasers” because they don’t actually work for the benefit of the poor who can’t sue, they actually parasitize the legal industry by filing for too little to make up for damages (e.g. ongoing medical bills) which would create a court battle but just enough to give them cushy profits from the suit should the other party settle. They often refuse to take cases altogether because of a low risk of winning – and thus their getting paid. That means valid complaints are denied those who can’t fund legal help. So, no, you wouldn’t create “fairer courts” in “one of the simplest ways.” All you would do is entrench a parasitical situation that’s already practiced today.

        1. Anyone who actually didn’t care about monopolies or understood that they only exist where created by government wouldn’t say coercive governments should exist to beat down monopolies:

          A monopoly, while I have no care that one exists, shouldn’t be able to exert its influence to either ignore any law in their favor nor triple the price of apples for a specific client. This is why I support the government civil court system.

          As if somehow letting the government create, regulate, and judge monopolies can somehow magically lead to justice for the victims of crony government. You live in a dream world.

          And because the current system takes lawyer fees out of contingency awards, you throw out the baby with the bath water? The slight fix of losers paying full restitution solves that. You perhaps haven’t realized that much of the so-called ambulance chasing is a direct result of government regulation and strangualtion of the justice system.

          You’re just another statist making excuses for statist government. “I an a libertarian, but …”

          1. Uh, no. Monopolies exist because businesses naturally grow as long as they are successful. It is true that monopolies can exist via government fiat – and that it makes it easier for them to do so – but monopolies have existed without government multiple times. And my point wasn’t about monopolies themselves, but the business practices that are commonly associated with them that any business can employ.

            And you are talking about taking a niche in our current justice system and making it the only way the justice system works, which means that the exacerbation of the issues within that niche are going to be brought up. This is no “slight fix” it is the rewriting of jurisprudence specifically to cater to anyone in power when the switch happens. That’s not libertarianism, that’s government-sanctioned oligarchy. Exactly what you say is so terrible about monopolies in the first place.

            1. Your knowledge of the history of monopolies is wrong. Please educate your self before shooting off your mouth. Google, library, it takes very little to learn the truth and makes you a batter advocate.

              1. Are you only looking only at the original public works monopolies that lead to the anti-trust act in the 1890s or something? Those were propped up by government, yes. But those aren’t the only instances of monopolistic companies getting larger and larger due to their own merits.

                Standard Oil’s monopoly, for instance, was almost entirely built by Rockefeller and his business practices with little government help until the later years of his empire – after it was an ostensible monopoly.

                IBM once had a near monopoly on computer systems (though this was tempered by computer “kits” in the mid to late 70s as well as clone manufacturers in the 80s) for quite awhile.

                Microsoft’s monopoly in the 90s was all business practice, as well.

                And then you have all of the huge global businesses that, while not monopolies, still grew to sizes much larger than Standard Oil or IBM ever did (Con-Agra, Monsanto, Holcim, etc). See, businesses grow larger as long as they are successful.

                Please educate yourself before telling anyone else so.

                1. Ignorance seems ordinary for you. All three of those monopolies never were actual monopolies, all three were already in decline by the time the government got interested, and all three prosecutions did nothing to improve the market.

                  “Businesses grow larger as long as they are successful.” Gosh that’s clever. I bet no one else has the insight that you do.

                  1. Yes, but I wasn’t talking about the government moving on monopoly at all – as I have said already. I was talking about a specific feature of government – creating a level market, and said:

                    “A monopoly, while I have no care that one exists, shouldn’t be able to exert its influence to either ignore any law in their favor nor triple the price of apples for a specific client.” which was an example of a time for a level playing field to be enforced.

                2. Not one of your examples constituted in its time an actual monopoly. At best they are weak examples of oligopoly. It’s theoretically possible due to efficiency at scale for a single player to become a natural monopoly, although the likelihood of it happening is extremely small, and the likelihood of that status being attainable in the long-term is even smaller.

                  1. Standard Oil ran something over 90% of oil products in the United States at one point. IBM manufactured over 90% of certain computers. And Microsoft’s OSs ran on over 90% of desktops and server for awhile. And, yes, the government got in when it wanted gold and not when it was to protect anyone. But I’m not advocating for government to give two cents about the fact that there is a monopoly (or “virtual” monopoly). I don’t care if one exists by itself.

                    My point was never that government should stop them. That was all Scarecrow’s argument with himself. The point was about business practices that created an unequal playing field against smaller entities in their favor, especially via interaction with governments and price manipulations, which is where I view a legitimate government function. Whether you agree with that or not, it has nothing to do with monopolies.

                    1. The closest you come to an example of monopoly, and it’s still oligopoly, is Standard Oil.

                      IBM faced strong competition even at the height of their PC business both in the home and corporate workstation market, but most especially in the broader computer market with mainframes, data processing, and servers. Even within the home desktop market your contention of a 90% market share for IBM is total bullshit. Throughout the 1980’s, the Commodore 64 enjoyed upwards of 40% market share, and the PC’s dominance throughout the 90’s was mostly the result of non-IBM clones, not IBM technology. IBM abandoned the desktop PC hardware and software market altogether because it was too crowded and represented a diminishing portion of revenue by the mid 2000’s. So, even if this was an example of monopoly (and it isn’t), it was certainly not durable, having lasted less than 20 years.

                      Microsoft’s fortunes largely track the PC market, so most of the above applies. Microsoft is actually the minority player in public internet server market share. On cloud platforms, Microsoft’s share is 25%.

                    2. I’m not trying to barge in on you guys’ pissing match, but before you have a discussion about the merits or demerits of monopolies, it’s helpful to demonstrate that one actually exists. Even the relatively less free mixed market that we enjoy in the United States is not very conducive to natural monopolies. A completely freed market would be even less so.

                    3. I concede that I conflate oligarchy and monopoly, but that’s primarily because the “difference” is used by politicians to justify not pursuing their friends under the anti-trust act. “Oh, Cable internet and DSL internet both exist in the same thumbprint on a map. Obviously, that means there is competition, even though their coverages don’t overlap!” and so forth.

                      Standard Oil and Microsoft (by the way, today’s Microsoft is not 90s Microsoft both in the company and in the markets they operate in) both walked into customers and said “Buy from us or we’ll triple your prices and run you out of business!” IBM could have done so, but instead operated differently.

                      But the point wasn’t about monopolies (or their merits) at all, it was about businesses abusing their power dynamic to do manipulate the market, which won’t go away in a freed marketplace. If anything, there will be nothing to stop companies like Standard Oil or Microsoft from using their position to dominate their particular fields. The fact that they got to 90% of their respective markets shows you it can happen. In Microsoft’s case they invested something like 45% of Apple’s value just to keep them afloat as a competitor.

                      So, how would this be stopped from being a complete monopoly, should another company rise to the line under a completely freed market? It wouldn’t. Monopolies can happen outside of government. And I don’t care if they do. I care about all business’ practices in making the playing field unlevel.

      2. By the way, you should “analyze” what went wrong if you think “government coercion” can be done away with.

        I get it, you don’t want the government to be overbearing. It’s a fair note that I’m sure many of us here would agree with. Unfortunately, you are going to be coerced by every government ever. If you abolish government, one will be established over you – as has happened constantly throughout history – whether you want it or not. You can fight against it, but it sill still be established, even if it has to be over your corpse (and, since you still live in this day and age of oppressive bureaucracy, I assume your self-preservation instinct is good to go.)

        Assuming that you magically wave a wand tomorrow and the government is dialed back to essentials only, you should accept that limited government still includes some coercion. You will always need to pay for it (taxes), you will always need to enforce it (more taxes), and you will always have to participate in the public space to keep your vigilance strong against big governments’ return (time and effort, though not taxes).

        By definition, someone, somewhere will have to be coerced by government. For something like “robbery” or “murder” it’s straight forward – the aggressor is coerced (or punished if after the fact) by the government. It’s not so straight forward in many areas and establishing the line in every instance of “just enough coercion” is not easy, but it can’t always just be “done away with.”

        1. “government is dialed back to essentials only, you should accept that limited government still includes some coercion.”

          Why should anyone accept a violent coercive monopoly? Gov’t was dialed back at the start of the country. It never stayed limited, but grew to what it is today. Your belief of gov’t limiting itself is nonsensical.

          When a thief steals your property, should you just accept that limited theft? How one can claim that because someone in fancy clothes is elected, that theft, coercion and violence is magically OK.

          The “essentials” you speak about, which probably means defense, RoADZ, policing, court systems; can and has been more efficient, effective, and less violent when handled through private production. That being free individuals engaging in transactions free from force, theft and coercion.

          One look at anything the gov’t does (or regulates), they are always in crisis mode. Crumbling infrastructure, defense budget crisis, police that follow mans law and protect the state’s interests, etc. To say such waste, misallocation of and abuse of resources can in any way be more efficient than private economic actors who face immediate consequenses for their actions just doesn’t make any sense at all.

          Gov’t is a fantasy, in which folks get to live at the expense of others, and with the advent of currency debauchery, can do so now at the expense of future generations as well.

          1. Pay someone to rob, and dominate you with your own money. Leave others to be free and enjoy the fruits of their labor.

            Anyone forced to work for the benefit of another is a slave, and no matter how limited the slavery is, it is still atrocious, and denies the individual their liberty.

            1. Very well. Go abandon currency and start a government-less country. I will call myself wrong should you succeed. But you won’t. You seem to think that humans can exist that way. They haven’t ever. Even back in the small band/tribal days, elders or shaman held the power of governing because social interaction brings conflict.

              And this is what your supposed government-less life will be like. You will rule over those in your household. Lo and behold, you are the thing you hate. And, right next door, you will have your fellow sovereign loathing you for your satellite dish that is an affront to his kingship because the beamz cause brain damage like cell phones.

              So, tell me honestly – with all of the people out there that you can look at, shake your head, and wonder how much lead paint they drank – do you really want them to be staring at you with both raw hatred and howitzers? Hyperbolic, yes, but you seem to think that people won’t still be people after there is no government.

              I’m a realist about this. I never said that the government will just be “limiting itself” because, just like the humans that run it, it will try to be more successful and grow its “success”. The people need to be vigilant and aggressive in keeping it curtailed. Unfortunately, that is the downfall of government: the people. And it’s the downfall without government, too.

              1. Side note and clarification: “Successful” government was meant as “by the people currently in power” and not “by the people.” I meant more quotes around that word.

              2. What does currency have to do with government? You have already shown your statist hand by that gratuitous linkage. History is full of examples of currency independent of government.

                As for establishing an anarchy somewhere, you have a very poor imagination, matched only by your recollection of history. By your rantings, any government less coercive than its neighbors could never survive. Yet somehow the world is full of governments much less coercive than the kings of old, and some of the worst dictatorships in history are long gone. Once you learn a little history instead of relying on fevered imagination, you will see that the historical trend is towards more and more decentralized government. Even the US, where I live and detest the government, is losing control over things it would dearly love to control, such as information dissemination (the media) and manufacture (3D printing). There once were no democracies in a world of kings and generalissimos, but now there are many, and it is a sorry imagination indeed which can’t extrapolate that to future governments having less control than nowadays.

                You might ask yourself why so many dictators, even in days of old, went to such great lengths to retain the trappings of legislatures, show trials, and appeals courts, when by your definition it would be safe to assume all those things are just weak facades to fool the masses.

                1. If you had read the statement I was responding to, you would have understand that I meant to include “Debauchery” after currency. Perhaps if you’d take time off from smug superiority about your opinion and drop the baseless insults, you’d have time to bone up on context and discussion.

                  If you look at history, you would see that freedoms are won, we lose them to glorified warlords (e.g. kings) and then freedoms come back after a crapload of struggle. Unless you forget the freedoms of Athens and then Rome that devolved over time to their governments, caused the loss of those societies, and then later came back. Instead of hastening the return of the warlords, I would prefer to go straight to “Freedoms come back after fixing our gov” instead of inviting in the conditions that make warlords smile.

                  On top of that, you think that the govs of today aren’t taking strides to control the internet and things like 3D printing? China doesn’t have a huge firewall preventing all sorts of internet information getting in? And do you forget other countries in the Middle East and South America that make the same efforts? Our own media is pushing the story that 3d printers let you build an arsenal of guns and how dangerous that is. Europe is implementing censorship as we speak. How long before the US joins in?

                  But, sure. Let’s get rid of government. I’m sure ISIS and the Mexican drug king pins will leave us alone.

                  1. To elaborate on that last sentence, before you again fly off on some straw man, the US has already had two attacks by fundamentalist Islamics this century. Plus, we have Mexican drug cartels that would love to establish safe corridors into the US for their drugs. And, on top of that, we have our own personal gang pockets in this country that would love to expand their own territories – though depending on where you are, they may be too distant to pose an immediate threat after switching over to no government.

                    How would you stop them from taking over, say, rural Illinois from Chicago? Do you think a bunch of farmers could stop them? Or afford to pay huge direct security bills to stop the flow of drugs from Juarez to Chicago and/or Chicago thugs to their farmland?

                    I agree that our current gov’t is too much of a bloated, useless beast to possibly address these issues on their own – and that they only exist in a kind of stalemate. But they are issues that the power dynamic change would cause the opposers of our government to step in and try to take power for their own ends. This is all waiting in the wings.

                    That is why I say we need to remeasure our government. Cut the fed back to the enumerated powers in the constitution (only), institute a tax reduction, and turn the purse strings over to the people via vote instead of any elected official. That way we can control as a society how much the government gets to spend and stop them from using the slush fund to pay their friends.

                  2. Daesh is reacting to a litany of western interference in the mideast. Perhaps you are one of those who think it’s proper for the west to react to their actions, but barbaric of them to react to our actions.

                    The Mexican drug cartel only exists because of the Mexican and US governments. Without government creation of black markets, they wouldn’t, and couldn’t, exist.

                    1. I don’t think we should be involved at all. But we are their evil nemesis. Not having a government won’t make them suddenly think us as not a target. In fact, in my opinion the opposite would happen – they’d try to do as much damage as possible so that they could say that they have slain (or, at least, terribly injured) their demon – likely motivating many more disenfranchised Islamics across the middle east to join their cause. Each proclaimed success has swelled their ranks.

                      And the interference was the abolition or ceasing the backing of several ruthless rulers and administrations. I mean, was Saddam Hussein really any better? Assad? The Taliban? No. Had we not interfered the first time, for instance, Hussein probably would have had a map similar to ISIS today, if not a little bit larger due to the already-conquered Iraqi holdings. He would have easily retained control of Kuwait and moved in on the smaller Islamic states in the region. Saudi might have contained him themselves, had we not acted on their behalf, but their military participation is a bit of a crap shoot, even today.

                      And it’s true that the drug cartel was created by governments, also. But they are there, now. A complete and ready-to-move guerrilla military force that wouldn’t have any compunction about moving into the US if they thought they could.

                      But here is a question for you: How would the private country defense work against something like the cartels in your mind?

        2. Vampire says everything I would have said. How can you possibly delegate to government the powers you don’t have yourself — theft, coercion, ultimately the power to kill without remorse? You can’t. You certainly don’t have my permission to steal from me or throw me in jail at risk of my life for not doing what you say; you can’t give that authority to some random group of strangers and call it government.

          1. Actually, without any government, all of those rights fall to the individual. The individual can steal, coerce, and kill without remorse.

            See, it’s not “theft” if the individual doesn’t consider “property” a thing. And unless you see a person taking your bag of rice, you would only know that your bag is missing – not who did it. You would need everyone around you to share your moral code – and we know how few people actually share a moral code like that. There is an entire second generation of hippies in this country that think that property rights shouldn’t exist at all.

            At the same time, you would kill that person without remorse for taking your bag of rice – after all, he’s risking your family’s survival. You defeated “remorse” through justification – it needed to be done because he wasn’t going to give you the rice or perhaps he pulled a gun when you went to get it back. Either way, you would take your rice and be happy you and your family would survive.

            And, finally, should another person take your rice, you would immediately engage coercing them, probably with force (it really is the easiest way) to get it back.

            All of these are rights of the individual, either by justification or by ignoring what you and I would consider good and right or through justification.

            1. You confuse “society” with “government”.

              The natural human right to survive and control your property is not created by government. Governments pay lip service to protecting those rights, but most don’t even put up the pretense you calim for them, that of having created those rights.

              1. I don’t claim they “created those rights” I said that in the absence of the population giving up those rights (or an oppressive government claiming those rights) they fall back to the individual and showed how each would be used, sans government.

                And I don’t “confuse society with government.” Society creates government. You don’t have governments without a social structure to start that government moving. Thus, if you remove government, you have to contend with the social fabric of society directly – a lot of which is not cohesive.

        3. MokFarin:
          “t’s not so straight forward in many areas and establishing the line in every instance of “just enough coercion” is not easy, but it can’t always just be “done away with.””

          Yeah. In other words, anarchists won’t ever get what they want.

          And, in that way, they’re exactly like every other libertarian on the planet.

          1. I may disagree in several fundamental ways with Scarecrow and Vampire, but it’s not like they should stop advocating for their ideas simply because others disagree with them.

            And it’s not like progressive authoritarians or progressive totalitarians, our current two parties, will ever get what they want, either.

            1. Pretty much. Funny, isn’t it?

              The fans of the nightwatchman state always say to the anarchists, “Now, limited government is great, but you’re going too far. There will always be a government. Someone will always make one, or create one, or rule over you. So, since we can’t get around that, we should probably stop at a night watchman state. It’s just unreasonable to try to shrink government less than that. It’s a pipe dream. It will never work.”

              And, standing behind that fan of the nightwatchmen state, there are a few conservatives, progressives, socialists, communists, etc, saying,

              “Ehem. Certainly, I enjoy some personal freedoms myself, but I couldn’t help myself but overhear you talking about pipdreams. Now, let’s have a conversation about reasonable government…”

              1. I look at it differently. I’ll steal your analogy, though. 🙂
                Instead of having a useful discussion over the government and its’ role, everyone chalks a line on the floor with their ideology and says “Anything outside this line is BAD.” It’s all about the political line and nothing else matters – not even effectiveness. Once data comes up that proves them wrong, they find another data set that reinforces their beliefs and then reasserts that they have the only way.

                I try to be willing and open to new data that can occasionally refine or redefine my thoughts on a subject, but few people hold themselves to that standard. Thus, effectiveness and utility in things like the form of government are tossed out a window in favor of an ideology.

                In your analogy conservatives, progressives, socialists, and communists may all start their discourse about reasonable government with those two lines, but they all go different places and then battle for their ideology (usually for their own profit in some way also) instead of the utility of government. After all, Ben Franklin got involved in colonial government because it was the way to guarantee his printing facilities were commissioned by the government for official works.

                This is the way of humans, unfortunately. We only have ourselves to blame when we can’t have nice things.

                1. “This is the way of humans, unfortunately. We only have ourselves to blame when we can’t have nice things”

                  And, correct me if I’m wrong, but somehow you’re a rare exception to your general statements about humans and why we can’t have nice things, right?

                  1. Why would I be any different? Knowing about it doesn’t mean I haven’t been caught up in the ideological game, before. As I stated, I try to be willing and open to new data. It doesn’t mean I always am, and it can be a struggle to tamper my instincts to follow the pack with outright rejection of the new information for some of my more personal beliefs.

                    People know that the earth is an ovoid – not a perfect sphere. Yet if you look at any globe, illustration, or general conversation they still call it and cast it as such. It’s conceptually easier. But they still know they are being wrong ( even though they don’t care for such a small and utterly useless factoid in their daily lives).

      3. ^This (except for loser pays, as some folks may not choose arbitration with such a feature)

        Thanks for repairing my scarecrow. But it fell in the chippa when i was moving things……is it at all possible to repair at this point?

        1. Damn squirrels, that was to your post scarecrow.

        2. You could recycle all the components as sawdust for new stuffing. The outer shell is probably unrepairable, alas.

  3. Anarcho-capitalism is going to be propped up in the future. As society becomes more and more productive, less faith will be put into government. I’m too lazy to argue why it’s a feasible idea..

    1. I will say this though. Why would we think controlling monopolies will exist in nature? Is it too much to be able to provide for yourself, why would people be so dependent on an over sized corporation that ideally is robbing you? Unless monopolies can be a good thing, I don’t understand why we would villainize it so much.

    2. I look forward to anarchists forming their own anarcho-communist party and seeing how many votes they can raise. With friends like bomb-throwing anarchists and prohibitionist abortion-clinic terrorist conservatives, who needs enemies?

  4. Alternatives to the courts are fine by me, and preferable in some situations. But I do not sign contracts that require me to not only offer credit, but to also accept their choice of venue. If burned by deadbeats, it is often better to use the regular court, pay the fee, file a motion to appear telephonically and state your case. A warning that “if we cheat you we also choose the venue for redress” is, at best, telegraphing their moves.
    You can’t have someone else’s cake and not pay for it too.

  5. Could private courts work? Perhaps in isolation. But the state’s monopoly on justice is no accident. Suppose there are two competing giant firms, and one of their clients had come into conflict with each other. While these firms could go to war, as the usual anarchist argument goes, that would be too expensive for both, as they would usually settle it in court. But would they just go to court and settle the matter and not plan or prepare for future conflicts that would inevitably happen? I am not so sure. It is more likely these firms would craft an agreement of several rules both would be bound to follow, and conform to whatever the prevailing opinion is both by their own arbitrators, thereby leading to a dominant justice and legal system. This would then multiply over and over again until there is one giant monopoly, leading to what analogues we have in real life – the Supreme Court of the US, and the International Courts that all nations implicitly or not agree to solve resolutions in.

  6. This is a complex subject, and to say that the state needs to exist in some form to provide tribunals of justice and coercion is not to endorse the status quo of how these tribunals are funded or constituted. It is a difficult subject, susceptible of a great deal of experimentation.

    However, the notion that justice can be provided by market forces is a fantasy of anarchism. Logically, markets can only exist beyond the moment because of non-market foundation that permits competition and outlaws coercion. To state that the foundation of a market economy can be market based is fantastic. Historically, every instance of anarchism has always given way — in short order — to some virulent form of statism, as even Rothbard admits in his history of colonial Pennsylvania.

    Richman doesn’t help matters with his usual “You-people-just-don’t-get-it” tone. We get it, Sheldon. It’s a rich subject that deserves better than “people who disagree with me are simply wrong.”

    1. A better saying would be is coercion is the foundation of justice. You can either use coercion justly, or unjustly, but regardless, there is going to be coercion in a market system without a state to monopolize it, and that is what would make the market system unjust and more similar to cronyism. (e.g. why compete fairly when you can just flock to the biggest competitor and literally crush the competition?) There is no incentive to be just and play fair in a free market.

      Otherwise good post.

  7. One suspects that Richman has never had to, say, go to arbitration with his insurance company with an arbitrator of the insurance company’s choosing. Enviable, certainly, but something something, cloistered theoretician…

    The other problem with an ancap judicial system is that without a monopoly on force, the rulings of any particular court aren’t worth the paper upon which they are written unless the losing party willingly complies with the entire process.

    Let’s say I decide to start storing my depleted uranium in your backyard and you respond by filing a suit against me in Jim Bob’s Court of Justice. Even if I choose to respond to the suit (and I have no reason or obligation to do so since I don’t recognize Jim Bob’s Court of Justice as a legitimate arbitrator) and lose, your judgment from Jim Bob’s Court of Justice is only as good as your ability to enforce it yourself. You could, theoretically, take your judgment to one of the police organizations that contractually recognizes Jim Bob’s Court of Justice as an arbitrator (presuming I haven’t contracted with all of the local police organizations to exclude Jim Bob’s Court of Justice as a recognized arbitrator) and hope that they have the resources, personnel and firepower to get past my private security force, return the uranium to my property, and/or conduct a raid on my bank to compensate you. If our resources are mismatched in my favor, you probably won’t be successful.

    1. Now you’ve still got my depleted uranium sitting in your back yard, and the police organization you chose is suing you for compensation of the families of the officers that died trying to collect on your judgment. Fortunately for you, they chose to sue you in Jim Bob’s Court of Justice, and you’re no more obligated to recognize Jim Bob’s Court of Justice than I was. Unfortunately for you, all your money was spent pursuing your lawsuit against me and hiring the police organization to unsuccessfully attempt to enforce your judgment. Your property’s not much good to you all contaminated with my uranium anyway, so you just skip town and hope your PD doesn’t send out a bounty hunter or assassin after you. It’s probably not worth their time or expense since you have no assets, so you should be okay. And we all lived happily ever after.

  8. You seem to be missing two big reasons why those competing court systems ultimately centralized and became common or civil law.

    They couldn’t fairly deal with homicide. Someone ‘choosing’ their court of jurisdiction can always avoid a bad outcome in one court by killing the disputant and then ‘freely’ choosing the court they own. The scanty history of homicide rates/statistics (Pieter Spierenburg, etc) shows that homicide was about 4-40x more common during the medieval heyday of all of those competing court systems before the rise of the centralized organizer (nation-state). And those rates declined in almost lockstep with the centralized organizing of those courts and the gradual expansion of access to those courts.

    1. They couldn’t AT ALL deal with the biggest private property element – land v ‘natural liberties’ of people with regard to that. Claiming a monopoly over the use of land REQUIRES the threat of violence/coercion against those who would ‘squat’ on that land for the purpose of mere survival. Dispute adjudication about land has ALWAYS been about the application of coercion/violence. Big history itself is little more than a record of the disputes between incompatible ways of dealing with that. A nomadic tribal culture has no dispute mechanism about land. When that culture comes into conflict with a settled supra-tribal system, the winner (civilization in the original sense) gets to write the history about how they dealt with the barbarians/savages – and their method of dealing with ‘land’ is now imposed on their new conquest. Once the land itself is all under ‘civilized’ rules; then that society handles future disputes via cronyism of some sort – decentralizing the authority over that land to nobles (under the feudal obligation system) or individuals (via land patents and the notion of ‘absolute’ property rights) or bureaucrats (via various socialized systems). And creates courts that protect that cronyism.

  9. You either accept that civil courts are a true public good (in the still-market-loving, still-libertarian sense) or you don’t.

    If you don’t, then that’s fine. But it’s intellectually empty — indeed it’s downright childish — to dismiss the majority of us who do as the functional equivalent of “apocryphal” bumblebee denialists. Do you not see how dumb that comparison is?

  10. my co-worker’s sister-in-law makes $71 every hour on the computer . She has been fired for five months but last month her income was $16368 just working on the computer for a few hours. see page……….

  11. Those who insist that market anarchism cannot work because it lacks a monopolistic court of final jurisdiction are wrong

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