Jock Coats shares his dream of a society without state legislators
Like nearly everyone else I have lived most of my life not thinking to question that we need a government to create and enforce the law, to preserve the peace, and to guarantee contracts. Even as a decade of frenzied New Labour legislative activity sapped my faith in political government it was difficult to see how we could do without some legislators.
But it turns out that there has long been a school of thought that says we can have justice, peace, and security without state legislators and the apparatus of enforcement and punishment over which they wield a monopoly. Not only that, but that there are reasons to believe it would produce better justice, better protection and cost effective resolution. All without legislators; without, in a word, a state.
These are bold promises. But before I describe this miracle and how it might work, perhaps it would persuade some of you to consider it more seriously if we took a look at why we might want to overthrow what to many appears to be a perfectly adequate current system.
- State-created law is a monopoly. Monopolies are generally bad—the state even legislates against them in other areas of life.
- This monopoly has jurisdiction in disputes with itself thereby creating an institutional conflict of interest. The state makes the law and employs the protection agents, judges, and enforcers. For things to be seen to be fair, conflicts of interest are usually frowned upon. If it doesn’t like something you do, or something you are, the state can conjure up a new offence so that it can get you next time.
- While the principle of “innocent until proven guilty” is enshrined in the current system, nobody is personally accountable, most of the time, for their actions. If there is any compensation paid for a miscarriage of justice, or for a policeman overstepping the bounds of reasonable force, it is not the policeman or judge but usually the rest of us, as taxpayers, who pay the price. If you are unfortunate enough to become the victim of crime, the state’s protection agents have already failed you. Then it is unlikely to find the perpetrator for most crimes. Even if it does manage this, their penalty bears little relationship to your loss and you share the financial burden of keeping your assailant unproductively behind bars.
The alternative to the status quo is not as alien as you might expect. Many libertarians subscribe to the idea of the provision of security, dispute resolution, and restitution by competing organisations operating in a free market. Based on key principles such as self-ownership, reciprocal non-aggression and that the aim of justice is to make victims of crime as whole again as possible “law” would be “discovered” by arbitrators applying those principles to the case under consideration. These key principles also define the limits of action that could be applied by security providers, by investigators, and by those who specialise in enforcing judgments.
People and organisations would take out insurance, similar to current day “professional indemnity insurance”, the firms providing which would act as brokers, arranging protection services for their clients, and agreeing between themselves on firms of arbitrators call on in a dispute between clients. Arbitrators would succeed or fail based on the quality and speed of their rulings. The collection of restitution awards could be handled by entrepreneurs acting like bail bondsmen do in the US.
This insurance need not be expensive either, for those worried about the ability of the poor to get justice in such a system. At its most basic it may be a neighbourhood based mutual aid society. After all, if you have a clean record, are unlikely to be a perpetrator of crime, and the costs of any crime against you are loaded onto the actual perpetrator, the premiums need not be onerous, compared with the costs everyone currently shares of financing the existing monopolistic state system. And if an uninsured person was a victim of crime there are incentives, such as exist today with injury compensation firms, for entrepreneurial organisations to take the case, compensate the victim, and recover the restitution through the arbitration system.
By fostering competition based on efficiency and perceived fairness, all the checks and balances we need can be incorporated, and the market will produce the outcomes people gravitate toward with their patronage. There would be great incentives for people to co-operate with such a system, since it would be difficult for alleged perpetrators to get insurance cover and therefore other economic goods such as employment, housing, financial services and so on unless they cleared their name or agreed to some kind of peaceful restitution arrangement.
Outlawry and ostracism should not be underestimated as effective controls and for those who tried to ignore the system, Hobbes’s idea of life being “nasty, brutish and short” may well be the reality for some. For the rest of us, there is the prospect of real justice without monopoly, conflict of interest, perverse incentives, and unaccountability—and a life free from arbitrary legislators enacting new laws by the boatload.
Jock Coats. E-mail: jock@jockcoats.me
