In our recent series concerning libertarian law and legal systems, we explained briefly how legislation is ultimately incompatible with a free society and that the finding of laws would be a decentralised, heterogeneous process. This essay will attempt to elaborate on how this procedure might work in a purely anarchical society – one with no compulsory, centralised authority of ultimate decision-making power – and how law will, in spite of (or perhaps because of) this fact cohere into a harmonious system.

As we have stressed countless times before, law emerges only because individual humans perceive conflicts that arise from interpersonal scarcity; we each wish to devote the means available for our disposal to our different, individual ends. If A wants to eat a loaf of bread then B cannot do so at the same time. Laws therefore arise to determine who has the right to own and, thus, to eat the bread. Where there is no conflict between two individuals then there is no need for law as it would simply serve no purpose.

The genesis of law, therefore, is a conflict over a scarce good between two individuals. For example, A alleges that B has aggressed against his (A’s) property; B might retort that the property is rightfully his and that A is the true aggressor for withholding it from him. Laws arise to determine who has the just title to the disputed property. But where would these laws come from? It is unlikely that A and B can unilaterally come to their own determinations of precisely which outcome is just. Aside from the fact that they are both biased parties and will seek to mould the law according to the outcome that they each desire, laws are intended to be publically acknowledgeable standards of conduct. In other words, the outcome of the case matters not only for A and B; everyone else in the world also needs to know who is the rightful owner of the disputed property so that they too may avoid or otherwise resolve any potential conflicts that they may have over that property. In short, everyone needs to know who owns what and who may lawfully do what with which goods. A and B are merely individuals and otherwise have no public reputation for dispensing and pronouncing the ownership structure that is just. A and B may unilaterally declare what they believe be to be the just position (and they may be correct) but why should anyone listen to them? Why would their own pronouncements afford them any moral protection at all from future aggressors?

Rather, what is likely is that each party will seek a just outcome through established and trusted professional bodies that have earned a reputation for dispensing justice and resolving conflicts. These bodies are privately owned and funded and must satisfy the “consumers” of justice that they will resolve cases fairly and impartially, otherwise they will lose custom to those providers that will. They are not compulsorily funded monopolies such as state-provided law courts and they must persuade their customers that their dispensation of justice is adequate.

Whether the processes followed by such private, justice dispensing bodies (hereafter “private courts”) will be adversarial, inquisitive or more closely related to some kind of arbitrational procedure cannot be said for certain; that is for the marketplace to determine, just as the marketplace will determine the structure and procedures of food and beverage manufacturers. There is, however, an arguable case for stating that the process will be adversarial much like law courts in common law systems, as we shall see shortly.

What will happen then once there is an allegation of aggression by one party against another? Let us say that A believes that B has committed an act of aggression against him. B may either deny this, he may dispute the facts, or he may believe that A is the true aggressor – whichever way they cannot resolve their dispute amicably and with agreement. What will A do in order to appeal for justice? In the first place he will seek out a private law court that he believes, from past decision-making, will most likely award him the outcome that he desires (all else being equal). A will bring an action against B in this private law court – let us call it L1 – and will furnish his case to that body. B, however, while likely being notified of the suit against him, has no obligation to attend the trial by L1. L1 is a private body like any other and has neither power of compulsion nor power of subpoena over anyone. B therefore has three options. First, he can either ignore the lawsuit and have nothing to do with it; this might seem risky but he has to judge the value of defending himself from A’s allegations against that of other activities to which he could devote his time and money. Indeed he might believe that A’s case is either frivolous or an outcome in his (B’s) favour so certain that there is no point in wasting any expense. Secondly, he might choose to defend himself against the suit in court L1. Thirdly he may disregard the suit in court L1 and proceed to bring a defensive action in another body – court L2. After all, if the potential outcome of the lawsuit poses a threat to B then B too will be eager to find a reputable law dispensing body that is mostly likely to find in his favour and not in A’s. If he believes that this likelihood is greater in court L2 than in court L1 then he will opt for court L2 and leave A to prosecute his case in court L1. It is because of these options, arising out of the fact that the private court system will never be able to compel any person, whether plaintiff, defendant or third party, to appear as a witness or to adduce evidence, and that they will have to rule solely on the evidence that is presented to it voluntarily, that the whole private court procedure is likely to be adversarial in nature. The court has no powers of inquisition or detection and is wholly reliant upon that which is provided to them by the parties. The parties may, of course, prior to the suit have hired their own private detective agencies to investigate and produce evidence that aids their cause and this may involve the questioning of and adducing of evidence by witnesses. The courts, eager to preserve their standards of justice, will develop rules as to that which constitutes acceptable evidence and private detective agencies will need to follow these should they wish to remain in business1. Furthermore, because of the need to be seen to be making an impartial decision, it is not likely that the court itself can get involved in fact finding missions and the direct handling of critical evidence. Rather, it is ultimately up to the parties to bring their cases to the court and to present them and for the court to rule impartially as a totally uninvolved third party.

How, then, will the courts reach a decision? If a case is prosecuted in court L1 then the court first of all needs to come to a settled understanding of what the facts of a certain case are. Facts are often disputed in cases and precisely what happened may be a painstaking and drawn out process. Once the facts are agreed, however, the more interesting question is how will the court apply the law to the case? And from where does this law come?

The overwhelming concern for L1 is that it rules in such a way as to treat like cases as alike – in other words, thefts are always dealt with in the same way; murders in their own way; assaults in theirs; and so on. In other words the same facts always lead to the same legal result in order to create a high degree of certainty of outcome. Law is, of course, meant to be a guide to avoiding and otherwise resolving conflicts and those bodies that rule in such a way as to confuse or distort the certainty necessary in order to accomplish this will simply lose custom. The task for the court therefore is try to compare and contrast the facts in the current case with those in past decisions – either sustaining the points of law in past cases that are in harmony with the facts of the current case on the one hand, or distinguishing those cases where the facts are different and the legal points do not apply to the current case on the other.

Where the case simply concerns a dispute of facts rather than the applicable law – i.e. the question to be determined is precisely which acts A and B carried out and the lawfulness of those same acts is not disputed – the court has to make a judgment along evidential lines to the satisfaction of the required standard of proof. Where the facts are agreed, however, and it is the question of law that is unresolved – i.e. whether A’s or B’s acts were unlawful – then the task for the court is much more difficult. Resolving these so-called “hard cases” at the individual court level is not so much our concern here, although we may venture to say that where there is no clear precedent the court is likely to reason an outcome that best adheres to the principles of past cases which will, in a libertarian society, be underpinned by libertarian society. We can also venture to suggest that a court is likely to be as cautious and as precise as possible when “discovering” law to apply to what appears to be a novel situation in order to avoid the appearance of outlandishness and to be sure to not inadvertently confuse or bring into question existing, well established principle, a limitation that has often escaped our statist legal systems. Rather, the more important aspect for us is how such “new” law will come to either be embraced or rejected by the legal system as a whole. This aspect turns squarely on how the decision is respected by the parties to the case and by subsequent persons and bodies that must deal with that case.

In the first place, if the trial is taking place in only a single private court – court L1 – that court’s judgment will be the only one in existence. We must add at this point that neither the court nor anyone else has the absolute right to enforce that judgment. Rather, remedial actions intended to resolve the conflict in harmony with the judgment now carry a degree of demonstrable moral weight. It is assessing the strength of this moral weight that is the first indicator of whether the judgment forms good law. Let us examine how this might unfold.

If the court decides in favour of the plaintiff (A) and against the defendant (B), B has a number of options. He can recognise the validity of the judgment and voluntarily furnish an appropriate remedy to the plaintiff. Such an act would be the first indicator of the soundness of the judgment. If, on the other hand, B rejects the decision or is otherwise uncooperative the task of enforcing a remedy may fall to a private recovery agency hired by A. Such an agency would necessarily be using force in order to extract a remedy (say, compensation) from B to make good the loss to A. This agency will want to make absolutely sure that the judgment in court L1 upon which it is basing its action is valid law in order to avoid the possibility of B later bringing a suit against the agency. In other words, the agency needs the weight of the judgment to prove that its remedial actions are a response to the genuine aggression of B and are not themselves new acts of aggression against an innocent party. If the recovery agency accepts the judgment and proceeds to enforce a remedy out of B this further lends weight to the judgment’s validity2. Before or even after that happens, however, B could bring a suit in an alternative court (L2) if he disputes the judgment of L1 (or may already have done so if he anticipated that L1’s judgment would not be favourable, as we suggested above). L2 will now examine the evidence and make a second judgment. If L2 rules the same way as L1 and finds in favour of A then this, again, adds a tremendous degree of weight of L1’s original decision and it is unlikely that any private recovery agency would hesitate to act as a result of not one but two judgments from established, reputable bodies against B. On the other hand court L2 might find in favour of B and against A. In this instance we now have the quandary of two alternative decisions emanating from different courts. What on earth will be the outcome of such a situation? It is likely that the two courts, faced now with the reality of uncertainty in their jurisprudence as to the outcome of a particular type of case, will be eager to resolve this difference of opinion in order to ensure that they will be able to cater for clients facing similar circumstances in the future and thus earn their custom – not to mention to clear up once and for all the problem for the specific plaintiffs before them. Court L1 might review the case presented in court L2 and decide to change its opinion in light of the new judgment, acknowledging that its original decision was incorrect and that henceforth the legal principles outlined by the trial in court L2 will form part of its jurisprudence. This is especially likely if L2 benefitted from evidence or testimony that was unavailable to court L1. On the other hand, should the difference of opinion not be resolved, L1 and L2 might themselves appeal to a third court – court L3 – in order to deliver a third and what is likely to be a final judgment. The two courts, eager to preserve their decision-making reputation, will be keen to demonstrate that each of their decisions was the correct one and will present their cases before L3 accordingly. If L3 rules in favour of A, the judgment of L1 is vindicated and L2 will mostly likely incorporate L3’s decision into its jurisprudence, overruling its own. If, on the other hand, L3 rules in favour of B, then it is L1’s decision that must be discarded. Courts that are serially victorious on appeal cases may have their reputation as justice-dispensing bodies enhanced whereas those who do not may have to work harder in the future to restore their own reputation. For the parties to the immediate case, however, one of them will now have two judgments in his/her favour and the other will only have one. While it is theoretically possible for parties to go on litigating ad infinitum, not only do we have to remember that the parties themselves will have to fork out the costs for these endless cases but that also further or alternative courts may simply refuse to hear the case, taking the reasonable view that two similar judgments by different reputable bodies makes good law and there is no need to go to the time and expense of prosecuting the same case again when there are other customers who are in need of justice dispensing services. Doubtless a private recovery agency will accept the weight of two judgments as authority to enforce a legal remedy from the losing party, should the latter not comply voluntarily. The only likely solution for the losing party is to adduce new evidence that the previous three courts were not able to benefit from and only then could the case be tried a fourth or fifth time. While it is also possible that one or more of the decisions would be completely wayward it is likely that the discipline of the marketplace will ensure that such instances are kept to a minimum.

Finally, another possibility is that court L2 might rule in favour of the same party as court L1 but on different legal grounds from that of court L1. While this will resolve the case for the immediate parties it is likely that L1 and L2 will privately bring a suit in L3 in order to resolve the outstanding question of law and remove any uncertainty from their jurisprudence. Of course, it may not be possible to settle all points absolutely in the immediate case and further cases may illuminate other circumstances or possibilities that bring past judgments into question. As we noted in our series of libertarian law and legal systems, law is determined not only by libertarian principle but by custom, convention and economic expedience. Although libertarian principle remains as a constant bedrock, these other aspects are likely to change as time unfolds and so it is entirely possible – nay, likely – that past discoveries of law will come to be replaced by new ones to reflect the wider societal change. Indeed as society changes so too does the precise nature of conflicts that arise – old situations disappear and new ones arise. Law that was applicable to the former may no longer be suitable for the latter. The law of a sparsely populated agrarian society, for example, will most likely have to deal with problems such as straying cattle and farm workers’ contracts whereas a densely populated urban society would need law to address issues such as noise, light pollution, boundaries, and also building covenants, rights of way and restrictions to a much greater degree. The precise legal rules that are determined for one society may not be appropriate for another and hence law will change over time as society changes.

Conclusion

This is basic outline of how law is likely to be discovered through prosecuting independent cases in an anarchist legal order populated only by private justice dispensing agencies. Crucially what we can see is that even though law discovery and decision making is heterogenous and takes place in different times and venues, in its entirety it coheres into a single body of jurisprudence that all courts will apply in future cases. What we see then is that a coherent system of law, in much the same such as money, turns out to be one of those institutions that exists and flourishes as a result of human purpose but not of human design. In just the same way as no one individual invented and introduced money, so too there is no one person determining and scribing the law. Just as no one individual will is needed to determine the price of a good in order to ensure its rationing and distribution to the most urgently desired ends, neither is there a single will pronouncing the just outcome of cases. And yet, just like money and market prices, law serves one of the most vital purposes of human interaction – the dispensation of justice and the resolution of conflicts – without any compulsory, monopolistic and centralised authority.

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1Such detective work may also be carried out by an insurer in cases where the aggrieved party is insured against the risk of aggression. Indeed some cases might ultimately prove to be a contest between the insurers of the parties rather than the parties themselves.

2The recovery agency is likely, of course, to outline the prerequisites that a plaintiff must possess before it will go ahead with a recovery. The judgment of a reputable and impartial third party is likely to be one of them.

 

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