People tend to think of a fair justice system as one of the cornerstones of a free and flourishing society. Yet most of us are resigned to the idea that it can only be delivered at the hands of the state. Rather than just accepting the status quo, perhaps we should question whether states are appropriate administrators of justice at all, and instead consider whether a state-free or libertarian approach to justice could work.
The word “justice” comes from the Latin jus, meaning “right” or “law.” The Oxford English Dictionary defines the “just” person as one who “does what is morally right” and is disposed to “giving everyone his or her due.” Meanwhile, most people conceive of the state as a sovereign organization that exercises control over a defined territory without interference and on behalf of its citizens. Through its sovereignty, it sets its own agendas, and through its control, it is free to marshal the people and resources within its territory to carry out these agendas.
Regardless of what type of justice a state aims to provide, it is important to understand that implied in any concept of a state is its need to be the only entity using aggression within its territory. By aggression, I mean the unprovoked use of force, or the threat thereof, upon anyone who resists its activities. This monopoly is critical; for as soon as opposing aggressors prevail (think criminals, invaders, or revolutionaries), some aspect of sovereignty and control—and therefore statehood—is lost. While using force to defend oneself or recover stolen items can be perfectly consistent with a just outcome, using aggression when there is no prior wrongdoing—say when the state forces the payment of taxes or mandates the use of its legal system—shows it to be a source of autocratic decree, thereby placing itself above the need to be bound to do what is right and just.
With a libertarian approach to justice, there would be no ruling state authority that must be appealed to. Instead, multiple privately contracted options could exist to validate, enforce, and fund any individual’s claim for justice.
To illustrate how this could work, let us suppose John has been attacked and robbed by Larry. John could look to fund any needed validation and enforcement services by submitting his claim to an insurer with whom he has a previously arranged insurance contract specifically designed for the purpose of funding legal disputes when an infringement of his person and property has taken place.
If John’s claim is straightforward and well-evidenced, the insurer may simply fulfill it right away with a cash payout. If the claim is more complex, involves significant sums, or is difficult to enforce, the insurer could first require a judgment from an independent and well-regarded legal specialist or judge.
In an open market for judges, those that build reputations for sought-after qualities such as objectivity, fairness, predictability, speed, and affordability will tend to be selected over those less able to evidence such traits. This selection preference would also be a major factor influencing which forms of jurisprudence predominate over time (see Stephan Kinsella’s Legal Foundations of a Free Society for a more exhaustive treatment of the foundations of libertarian rights and punishment theory).
If the selected judge rules against John, there may be implications set out in the insurance contract that penalizes him or at least limits his incentive to make unsubstantiated claims in the future. However, if the judge decides in favor of John, the insurer will need to pay any damages owed to John and commission an enforcement effort to recover its costs, plus deliver any punishment allowed for in the judgment against Larry. The enforcement effort could therefore take the form of seizing financial assets, seizing real assets, and potentially delivering a degree of physical punishment upon Larry.
John’s insurer would likely opt to enlist the services of an enforcement agency in order to bring its specialized capabilities to the enforcement effort, maximizing the chance of success and minimizing collateral damage, which could trigger costly counterclaims.
In the event Larry chooses to resist the enforcement attempt, he will be up against the resources and capabilities of a specialist enforcement agency, with the financial backing of an insurer and the independent validation of a ruling from a widely recognized adjudicator. Larry’s reputation and access to resources would likely rapidly deteriorate if he chose to resist such a combination unless he could build his own counterclaim with a credible independent judgment and commission his own enforcement and security services.
Such resistance and confrontational outcomes would likely be rare in a libertarian justice system given the way people and organizations tend to prefer preagreed resolution processes in their private dealings to remove uncertainty and risk should disputes arise. Insurers, judges, and enforcers are all unlikely to want to find themselves in direct conflict with their peers and competitors every time two parties make conflicting claims against each other. Physical conflict tends to be expensive and generally does not benefit either side. Most likely, insurers will have previously determined protocols they follow when handling cases where respective customers make conflicting claims against each other, such as using commonly agreed-upon judges. Enforcers may only want to take on contracts where a reputable judge has made an uncontested ruling and a well-established insurer is funding the enforcement operation. Such measures should generally ensure that when claims are validated, they are swiftly enforced.
If Larry is found to be in the wrong and his assets are insufficient to repay all that is owed, a debt obligation would be established such that John or more likely his insurer would be able to claim future assets off Larry until the debt is paid off.
Whether due to outstanding debts or because of the severity of the crime committed, Larry may not be able to maintain key community relationships and contracts such as those with landlords, employers, banks, and insurers. This could result in Larry being forced off and barred from entering most private properties. With few other options, he may be confined to living in a place of refuge where he works to pay for his living expenses and repay outstanding debts until the broader society is ready to engage with him again. Such a refuge would therefore be the opposite of a prison as the offender would not be sentenced there by decree; rather, he would simply not be accepted anywhere else, making a refuge his best option. The reason anyone would want to establish a refuge, beyond altruism, would be to gain access to the low-cost labor of convicted offenders like Larry who may otherwise be productive workers.
Under a libertarian justice system, maintaining contracts and relationships with key institutions would be critical to being able to function generally in society. Just as Larry would be faced with a very restricted life for a period of time if convicted for attacking and robbing John, so too could John have ended up in the same kind of life had he chosen to take matters into his own hands. For example, if John had simply decided to raid Larry’s property and assets to retrieve what he felt he was owed without an independent and recognized judgment and enforcement effort, then John could easily appear to be acting as a criminal aggressor and consequently lose his standing with the key counterparties needed to maintain his life and circumstances.
Having briefly sketched a libertarian approach to a justice system, we can now ask why this would be better than the various state justice systems we currently live under. The best way to understand this would be how we approach any free market solution versus a monopoly enforced with the threat of violence. That is, we could expect competition and unfettered economic calculation to ensure the cost of justice is driven down while maximizing the quality of justice.
This could take the form of better access to justice for the less wealthy, less victimless criminality, faster delivery of justice, more predictable outcomes, and outcomes more consistent with what is perceived to be fair and morally right. Particularly important is the removal of the inherently flawed concept of having the state as the final arbiter on conflicts between itself and the people within its domain, a construct always bound to favor the state over the people and be a major source of corruption and tyranny.
We must end by noting that a libertarian justice system will not ensure perfect justice all of the time. This is not expected of a state-run justice system and certainly has never been delivered. However, what we can expect is a process to be in place that works to constantly optimize and improve the justice system, with useful innovations gaining ground and deficient processes being discarded. Surely this prospect is better than what we have. Surely, we owe it to ourselves to think more about achieving justice outside the state.
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