Back in 2019 one Mario Demolidor asked me to field some questions. I replied to one of them at length. It was:

1) People often dislike libertarianism because they do not see how a fully contracted private justice system can work. So, I ask, how can we deal in a libertarian society with criminals or suspects who deny justice and make no contracts to elect a judge? How to get them to trial?

I have just been made aware that he later published an edited and rearranged version of my responses at Stateless Justice | By: Stephan Kinsella (March 10, 2020). I reprint his article below in case his is ever lost (this happens all the time), and append after it my original emailed response to him (unedited) for completeness and in case there are any errors or omissions from his version (I have not checked).

Stateless Justice | By: Stephan Kinsella

(March 10, 2020)

By: Stephan Kinsella

In response to: Mario Demolidor

O presente material foi escrito pelo professor Stephan Kinsella em uma conversa privada comigo sobre justiça privada no começo de setembro de 2019. Por conta da extensão e da complexidade refletida em tantas referências, perguntei ao Sr. Kinsella se ele teria interesse em ver tal texto publicado neste espaço e no grupo de estudos libertário de Fortaleza/CE que faço parte, o Visconde de Maua (ig:@grupoviscondedemaua). Ele respondeu positivamente.

Inicialmente, eu tinha outros planos para este material, que tem a ver com um artigo que estou escrevendo sobre o assunto. Todavia, o meu tempo anda bastante escasso por conta de um grande projeto profissional que estou envolvido, além da rotineira profissão. Resultado: minha obra acabou ficando um pouco de lado e sem previsão certa para retomada aos trabalhos.

Sendo assim, acredito ser interessante compartilhar este artigo com o público libertário em vez de guardar só para mim tal material exclusivo. Informo que fiz pequenas mudanças de formatação para adaptar melhor à estrutura de artigo (embora já estivesse bastante fiel). Cada um dos tópicos são temáticas que conversamos. Não traduzi porque quero conservar o pensamento e escrita do professor Kinsella.

Portanto, aproveite e tenha uma boa leitura!

[Google auto translate of above:

The present material was written by Professor Stephan Kinsella in a private conversation with me on private justice in early September 2019. Because of the length and complexity reflected in so many references, I asked Mr. Kinsella if he would be interested in seeing this text published in this space and in the libertarian study group from Fortaleza/CE that I am part of, Visconde de Maua (ig:@grupoviscondedemaua). He responded positively.

Initially, I had other plans for this material, which has to do with an article I’m writing on the subject. However, my time is very scarce due to a large professional project that I am involved in, in addition to the routine profession. Result: my work ended up being a little sideways and without a certain forecast for resuming work.

So, I think it’s interesting to share this article with the libertarian public rather than keeping this exclusive material to myself. I inform you that I made small formatting changes to better adapt to the article structure (although it was already quite faithful). Each of the topics are themes that we talk about. I didn’t translate because I want to keep Professor Kinsella’s thinking and writing.

So enjoy and have a good read!]

The criminals or suspects who deny justice and make no contracts to elect a judge

The question of justice in a future libertarian society is a complicated one. To the extent the question calls for a prediction, the issue is complicated because the state has so monopolized and distorted this field and coopted or stunted private alternatives, that it can be hard to predict exactly what a future justice system would look like.

Similarly, it might be hard to imagine exactly what a private road system or completely private educational system would look like, since the state has monopolized and controlled these systems for so long. In fact process of gradual state monopolization is what Hans-Hermann Hoppe discusses in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order (which appears also in his book The Economics and Ethics of Private Property).

In this article, Professor Hoppe explains how the state takes over and corrupts many institutions and aspects of life–roads and transportation, communications, law and justice, healthcare, money, defense, police, finance and banking, and education. And thus it is sometimes difficult for the libertarian to predict the exact consequences of the reduction or abolition of various pervasive state regulations and controls. This is why I point out the dangers of excessive “armchair theorizing” (see my post The Limits of Armchair Theorizing: The case of Threats).

Nonetheless, history and economic and political analysis plus everyday experience give us some ideas of what to expect the justice system in a free society to look like. Many important studies have been made already, such as Bruce Benson’s The Enterprise of Law, and many other works by Rothbard, Gerard Casey, Randy Barnett, Morris and Linda Tannehill, David Friedman, and others (see my article The Greatest Libertarian Books and Hoppe’s Anarcho-Capitalism: An Annotated Bibliography for further reading recommendations).

I discuss some of these issues in more detail in my post Fraud, Restitution, and Retaliation: The Libertarian Approach, but to highlight a few points. First, I believe that we can more easily establish more general, abstract principles, by use of reason and experience — the core libertarian principles of self-ownership plus homesteading (original appropriation) and contractual transfer, plus rules of “rectification” or restitution, or even retaliation or punishment.

Our core libertarian views — something similar to what legal philosopher Hans Kelsen would call “grundnorms” — and reason and economic reasoning help us articulate our basic principles, but because of the way legal systems develop in given contexts, cultures, and societies, it might be hard to determine “from the armchair” the concrete rules that a given legal system would develop and apply. As I noted in my article Review of “The Structure of Liberty: Justice and the Rule of Law” by Randy E. Barnett,

“Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights…. He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases. “Yet, Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system — a somewhat decentralized legal system superior in many ways to the common law — Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”¹ It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.”

(I discuss the evolution of legal systems and related matters in my 1995 JLS article “Legislation and the Discovery of Law in a Free Society,” which is summarized in “Legislation and Law in a Free Society.”)

All this being said, I do have some opinions on this matter, which I summarized previously in “Fraud, Restitution, and Retaliation: The Libertarian Approach.” I have argued extensively in my “estoppel” based theory of libertarian rights (The Genesis of Estoppel: My Libertarian Rights Theory) that, in principle, an act of aggression entitles the victim to retaliate with proportionate, responsive force against the aggressor. Thus, in principle, punishment of (retribution against) an aggressor is, in theory, justified.

And yet I am skeptical that institutionalized punishment would be feasible or necessary in a free society, for several reasons. First, unlike today’s society, in which the “state” is seen as the victim of a violent crime, in a free society, it is the actual victim (or his heirs or family) would would be the plaintiff.

The state can punish aggressors — or, more often, it punishes or jails “criminals” who have violated state legislated positive law, but not actually committed any crime (see Another Problem with Legislation: James Carter v. the Field Codes) — and can force the taxpayer to pay for the costs of incarceration. And the state can, and often does, make mistakes. Incarcerating a malfeasor usually does no good for the victim; no restitution is made.

The criminal is made worse off by his time in jail. As noted by Michael Malice on a recent “YOUR WELCOME” episode, one thinker (whose name I forget) has pointed out, the only people who should be in prison are people you never want to let out — i.e., the only really justifiable use of punishment or prison is to “incapacitate” dangers people — to prevent them from continuing to harm people. But incarceration rarely serves other supposed goals of the justice system — to provide restitution or to rehabilitate the offender.

So the fact that there can be the possibility of mistake combined with the fact that a punitive system is not likely to lead to restitution for the victim or rehabilitation of the offender leads me to believe that a restitution-based model would likely prevail in a free society — probably handled by custom, local tradition, or standards of insurance companies or regional agreements. In some cases of especially dangerous criminals or heinous crimes, there would probably be some kind of “street justice” (the family or others simply kill the bad guy and everyone “turns a blind eye”), or physical ostracism, or perhaps even permanent incarceration or enslavement. But by and large I would expect a private restitution system to prevail.

Now as to the question of such courts, tribunals, or agencies exerting jurisdiction over the malfeasor: Many libertarians think one defect of a stateless order is that without the defendant’s consent, he could not be tried, or punished. I think this is somewhat mistaken.

As argued in my estoppel theory of rights (Punishment and Proportionality: The Estoppel Approach), by committing aggression, the aggression consents to punishment by the victim or his agents. Therefore, I do not believe the victim’s agency would violate the rights of the aggressor by hauling him into court, arresting him, trying him, or even punishing him — even if he never “contractually” agreed to the court’s jurisdiction.

For one, he has already “agreed” by virtue of committing aggression. For another, even if he had agreed “contractually”, this would not be dispositive, since rights are contractually inalienable (as I argue here A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and Inalienability and Punishment: A Reply to George Smith).

But finally, I think in virtually all cases, it is not necessary to compel someone to show up for trial. Most people in a civilized, advanced, free society would find it necessary to have insurance; it would be difficult to find a place to live and engage in commerce and social interaction without it. And these insurers would have inter-agency agreements and so on.

Anyone who refused to have insurance would in effect be an outlaw or ostracized, and certainly marginalized and usually not a serious threat. And thus arbitral tribunal decisions would tend to be respected, since this is the only way for the malefactor to earn his way back into society and refusal to cooperate would result in his shunning and effective ostracism, if not a more severe form of “street justice” in some occasions.

In the cases where the malfeasor is penniless or runs off or disappears or refuses to cooperate, the victim’s insurer would make a payment to him, which would give the insurers an incentive to prevent crime in the first place. Similarly, the issue of cloudy title to real property would tend to be handled by property title insurers (see Property Title Records and Insurance in a Free Society).

The Compulsory Arbitration

As for the remaining questions, I believe they are more or less addressed by the lengthy response above. But in short: as to question of the compulsory arbitration: again, in principle, it is permissible to force someone after a judgment is rendered, even if they disagree, just as it is permissible for a victim to use force in response to his aggressor even if the aggressor “disagrees.”

However, I believe the necessity to resort to this in a private restitution-based system will be minimized. In cases where the defendant refuses to cooperate, then there are a couple of possibilities. First, he has already agreed to be bound to some arbitral tribunal by means of having signed up previously to an insurance agreement, so these inter-insurer agreements — similar to “treaties” — would have provisions as how to conduct trials “in absentia” if the defendant refuses to cooperate.

The resulting judgment will be as enforceable as any other, and because refusal to participate in one’s own defense harms one’s case, and because breach of such insurer agreement clauses would likely render the defendant uninsurable afterwards an thus ostracized, we can expect trials “in absentia” to be relatively rare.

Second, if the defendant is uninsured, and refuses his opportunity to defend himself, then we could expect the victim’s agency to render judgment in absentia and then seek to enforce it by various means.

Presumably such verdicts would be widely recognized in society so any money or property owned by the defendant would be widely seen as owned by the victim and the victim could simply use existing property systems to collect property from the defendant.

Probably in most cases such scofflaw type criminals would be outlaws and poor and not have much property resources anyway (anyone with substantial resources would have an incentive to comply with existing legal institutions and people who do not would tend to be poor anyway), and this would be a matter for reimbursement by the victim’s insurer.

Libertarian Society’s Tendency

The achievement of a libertarian society will have to be accompanied with an increase in libertarian views, which means there will be far fewer incidences of aggression and crime in the first place; plus, everyone will be so rich that there would be far less need to commit crime.

So we can expect crime and outlawry to be relatively rare, and to be relatively easily handled by the economically wealthier and superior forces of the civilized members of society. So yes, I think law would tend to focus more on refining property and contract rights and on crime prevention rather than response to crime after-the-fact.

I think the primary source of disputes would be over defining, establishing, proving, and conveying (contractual transfer) of property rights, and this would tend to be handled by efficient, private dispute resolution agencies applying an ever-developed and ever-more-sophisticated private legal system. Sometimes you hear people say we have too many lawyers in society.

I do agree that we have too many laws because law is made nowadays democratically, by legislation; we have “artificial” law, and this increase the need for lawyers to help citizens navigate the legal system. If we abolished all artificial or legislated law, and kept only the core private law that developed in the Roman law or English common law, the need for lawyers would drastically diminish: there would be no need for all the criminal defense lawyers who defend people accused of violating narcotics laws; there would be no need for tax lawyers, antitrust lawyers, patent lawyers, and so on.

And yet I suspect that in an advanced, free society there might be more private lawyers, since we would be so much richer and commerce would be vibrant, that people doing deals and engaging in transactions could more easily afford to do more complex and nuanced deals or hire lawyers to get the language just right. So perhaps there would be fewer defense attorneys and patent attorneys and regulation-law attorneys and campaign finance attorneys, but perhaps more contract and property law and estate law attorneys.

The Death Penalty

And finally, as for death penalty: as suggested above and as noted in my estoppel theory, in principle, lethal force is justified defensively during the commission of almost any serious, violent crime. And technically, I believe it is justified in response to any significantly serious violent crime, so long as bounds of proportionality are taken into account.

For difficult or “gray area” cases, I have posited that the “dilemma” here is caused by the aggressor, and therefore, the burden of argumentation and “theorizing” falls on the defendant and his attorneys to prove why the victim is not entitled to execute him (see Punishment and Proportionality: The Estoppel Approach, pp. 71–72).

That said, as noted above, it is difficult to imagine the private legal systems of an advanced, civilized, wealthy, free society having widespread institutional punishment, much less capital punishment, because, this generally provides no restitution to the victim, and there are huge costs of error. But on the other hand, we could expect to occasionally see “street justice” where an outraged family or friends simply assassinate or murder the malfeasor.

This might be risky for the family members because it might jeopardize their own standing in the community or insurability, but it’s easy to imagine situations where most people shrug and say “he had it coming” and let the matter pass. Or in cases where someone’s crimes are so heinous or repeated that they are determined to be a continual, “standing threat” to the community, we can expect in some cases there be some kind of serious force, possibly even lethal, used against the aggression — whether it would be “ad hoc” or institutionalized is hard to predict, but in any case we can imagine this problem to be relatively rare.

***

My original emailed response:

1. The question of justice in a future libertarian society is a complicated one. To the extent the question calls for a prediction, the issue is complicated because the state has so monopolized and distorted this field and coopted or stunted private alternatives, that it can be hard to predict exactly what a future justice system would look like. Similarly, it might be hard to imagine exactly what a private road system or completely private educational system would look like, since the state has monopolized and controlled these systems for so long. In fact process of gradual state monopolization is what Hans-Hermann Hoppe discusses in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order (which appears also in his book The Economics and Ethics of Private Property). In this article, Professor Hoppe explains how the state takes over and corrupts many institutions and aspects of life–roads and transportation, communications, law and justice, healthcare, money, defense, police, finance and banking, and education.  And thus it is sometimes difficult for the libertarian to predict the exact consequences of the reduction or abolition of various pervasive state regulations and controls. This is why I point out the dangers of excessive “armchair theorizing” (see my post The Limits of Armchair Theorizing: The case of Threats). 

“Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights…. He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

“Yet, Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?” It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.”

1. See Roman Law and Hypothetical Cases. [↩]