This article was published in the Winter 1995-96 issue of Formulations
by the Free Nation Foundation
 
Toward Voluntary Courts and Enforcement
 
by Richard O. Hammer
 
This paper was presented at our 14 October 1995 Forum.

 
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Outline
1. Introduction
2. If privatization can clean up environmental pollution it can also clean up civil polution
3. A first sketch of voluntary enforcement
4. An example: billing for electronic mail service
5. More characteristics of voluntary enforcement
6. Why would this work?  You have value
7. Questions that remain
8. Conclusion
-- References

 
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1. INTRODUCTION

When I first encountered the idea that courts might be voluntary 1,6 I was taken aback. How could that possibly work? Why would someone guilty of a crime come to court voluntarily? Well, I have been piecing together an answer. I can start to imagine a society with voluntary courts.

At first you may not believe the picture I draw, because voluntary society differs so radically from this society with which we are familiar. The picture of voluntary society starts to make sense only when you have substantially revised the image of society which you formed growing up in America.

The power of voluntary enforcement grows from our central value, voluntary interaction. Since no one is compelled to trade with anyone, mutual self interest could induce traders to boycott wrongdoers. Assuming entrepreneurs invent high-tech ways to share information among traders, an accused may find himself unable to buy food, water, electricity, communication on a telephone, or passage on a road.4 Recall that all these essential services are provided by private parties who may voluntarily withdraw from trade.

Complete boycott may threaten the life of an outlaw within days or even hours. So this suggests why even a guilty person might come to court voluntarily: because it is better there. Once an accused accepts participation in the voluntary process of justice, he may once again be offered a chance to use a bathroom and get a drink of water.

 
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2. IF PRIVATIZATION CAN CLEAN UP ENVIRONMENTAL POLLUTION IT CAN ALSO CLEAN UP CIVIL POLLUTION

 

Here I digress to draw a parallel between two kinds of pollution, environmental and civil. By "civil pollution" I mean crime and social problems created by the nanny state.

I assume that most of my readers already know the argument that government deserves blame for most environmental pollution. Therefore I will repeat that argument only briefly:
 

On the other hand, if private concerns dumped pollution into other private spaces the owners of those spaces would confront the polluters with fierce battle, sometimes at a life-or-death pitch. This protection of private interest through private policing of private space would end most of the worst pollution.

Thus government causes, directly or unwittingly, almost all environmental pollution.

Now I ask you to make a leap with me: from three-dimensional space in which environmental pollution is badly policed because government has seized a monopoly in policing, to decision space in which civil pollution is badly policed because government has likewise seized a monopoly in policing.

The civil decision space which has been seized and mismanaged by government includes decisions such as:

The tragedy of the commons afflicts not only three-dimensional spaces. Any space which government purports to manage may predictably suffer tragedy of the commons. This includes decision spaces guarding civil order.

 

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3. A FIRST SKETCH OF VOLUNTARY ENFORCEMENT

The picture is vague. At this point in my education, I can write only in general terms about the restraints in a nation freed of state-monopoly justice.

3.1 What Would Not Be

It is easy to point out major features which would not exist. Notably all roads and streets would be private, not public. In the U.S. government maintains virtually all thoroughfares, offering unrestrained travel over vast expanses to threatening persons. A person known to intend murder, if not presently imprisoned by the state, can travel unchallenged through that public space almost to the doorstep of every private property. This would not be.

Also, in the U.S. government restricts communication of knowledge of wrongdoing. Information which potential victims obviously need, for which they would gladly pay, cannot travel to these potential victims because of barriers erected by the state. This would not be.

Generally speaking the public space in the U.S. offers anonymity and untraceability to all manner of villains. After committing a crime a criminal can use that public space to escape notice the way a convict can walk through a stream to shake off bloodhounds. This would not be.

3.2 What Would Be

Businesses would spring up to carry information about threatening people to the potential victims of these threatening people. Competition would lead these businesses to employ the latest technology. Customers of these businesses would express strong preference for information which protects them from real crime (as opposed to victimless crime), and their purchasing decisions would cause this industry to get better and better at providing just this vital information and little else.

Driven by self interest, people would form associations to share information useful to their security.

Free markets would increase security by sharing risks. Those who pose a threat would be offered a chance to get what they want by reducing the threat. Here are examples. Abuse of the power of boycott will be limited by competition. Boycott of a suspect helps a trader only if the suspect actually threatens real crime. Otherwise, misguided boycott hurts a trader by denying the gain of a win-win exchange. As most libertarians understand, misguided boycott indicates, by definition, an opportunity for an entrepreneur to profit by trading with the victim of misguided boycott. Bonding companies may profit by assuming risk for a class of unfairly stigmatized people.

Indeed an industry of bonding may arise, offering such a diverse portfolio of bonds that wrongdoers or victims of bias (the distinction being blurred here) face not a harsh yes-or-no edge between imprisonment and liberty, but rather a continuum of bond contracts imposing increasingly more expense and more restrictions upon increasingly threatening individuals.

Formal, predictable and fair procedures for settling disputes would evolve. These procedures would often be part of the package offered in a sale, with contracts having clauses such as, "in case of dispute the parities to this trade agree to bejudged by ... ". Businesses hoping to attract customers will be motivated to offer, for this part of the package, the most sterling adjudication service available.

 
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4. AN EXAMPLE: BILLING FOR ELECTRONIC MAIL SERVICE

Here I tell a recent experience of mine which illustrates private security. During the past few years, wanting to get "on line" so I could exchange electronic mail through the internet, I have tried accounts with service providers such as Compuserve and MCI mail. To open an account with one of these service providers it seemed to me that I had to give my credit card number. My only other option appeared to be to hang up and forget about it. I do not like giving power to charge unspecified amounts to my card. But eventually I capitulated and gave my card number, deciding to trust the idea that my credit card company would treat me fairly if I complained that I had been wrongly charged.

Having thus been converted, even though against my will, I now find myself able to defend the service providers' demand that customers give a credit card number:

Wrapping up this example I point out that this arrangement was in major respects voluntary. It included a competitive offer with strings attached. I accepted, giving the service provider extra security by surrendering some of my power to judge each charge.
 
 
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5. MORE CHARACTERISTICS OF VOLUNTARY ENFORCEMENT

In this section I speculate more about a system of law which may evolve in a free nation.

5.1 Civility

Civility, I propose, can be extended by people who feel secure. And since free market security should work better than government-feigned law, traders should find themselves feeling more confident that terms of contract will be fulfilled (that cheaters and frauds will be effectively cut off). As a consequence I believe traders would find themselves tolerant of language and cultural differences, patient with misunderstandings, and gracious in the face of accidents.

The opposite, incivility, is I propose a natural response to the opposite kind of environment, in which people assume that cheaters can get away with their cheating. Indeed, incivility itself is a little sort of cheating more common in public spaces than in private spaces. Perpetrators of incivility typically expect that no sanction for rude behavior will ever find its way back through the public space to haunt them.

We can see another reason to expect civility in my contention that private space offers very little anonymity. In private space either you are known or something about you is known, because private owners protect themselves by trying to know what they feel they need to know about all who enter their spaces. Knowledge of your deeds will follow you. You had better be polite.

Professional adjudicators, or judges, would seek to please all parties concerned in any ways that did not damage their reputations of professionalism and fairness. Adjudicators are, after all, business persons whose continued business relies upon acceptance by both parties in future disputes. Thus adjudicators would balance realities. For instance, they would recognize that each side needs sufficient time to prepare, while also knowing that resolve needs to be reached as soon as possible.

And finally I expect free market courts would allow certain freedoms to accused persons whose cases had not yet been decided once sufficient bond was posted.

5.2 No Nonsense

While I expect that enforcement in voluntary society would tolerate many deviances, it would not play games. Indeed, innovation in enforcement methodology being freed from state monopoly, entrepreneurs could get rich inventing ways to discover and corral cheaters.

Rules, I suspect, cannot exist without being tested. Whatever the stated rules, opportunists will toy with the limits to see how much deviance it takes to trigger enforcement. With government in the role of enforcer, and with enforcement thus competing with welfare babies for budget dollars, only high-profile rules get significant enforcement. However the ball game changes with private enterprise in the role of enforcer. Rule-testing opportunists will face, not legislative budgeting decisions, but entrepreneurs looking to make money by catching them. As such, in voluntary society, I expect that most of the energy which goes into cheating and rule testing in the U.S. would soon find itself directed back into the permissible channels of productive work.

With voluntary enforcement corrective action could start immediately, as it would not be detained by something so slow as a government-court calendar. Security companies would probably compete based upon how fast they could act. But this raises a concern. What about false charges? The answer: no-nonsense voluntary enforcement cuts both ways. In a free nation I expect it would be judged a crime to detain someone wrongly, and people who instigated this detention would be liable for restitution. So it is risky to initiate certain corrective actions without confidence in the truth of the charge.

5.3 Sharing the Costs and Risks of Policing

Elaborating on an idea introduced in section 3.2, I expect that people who feared crime would work out win-win exchanges with potential criminals to reduce the cost of policing. My experience with internet service providers, described in section 4, gives an example.

For another example, purchasers of copyrighted intellectual property may be offered a discount if they:

Free market mechanisms for discovering truth would favor efficient means and would, I expect, seek reliable information from all sources including the accused. As such the principle "innocent until proven guilty," needed as a check against abuse of monopoly government power, may not restrain free-market punishments (boycotts).

I understand that gestures such as handshake and salute may have originated as a way to assure the absence of a weapon in the right hand. This sort of voluntary display of otherwise private information characterizes voluntary exchange. We want to draw partners into trade with us, but if we are smart we understand that our partners need to defend themselves from our potential misdeeds. So we volunteer assurances.

5.4 Bonding in Communities

I think bonding would play a more important role in free-nation civil order than it plays now in America. To digress about the origin of bonding, I think people are naturally suspicious of one another. We are aware that others might cheat us, or turn upon us. Thus, when dealing with a stranger, or any trading partner with whom we want more assurance, we want something like bonding. This seems as instinctive as breathing.

One of the common sorts of bonding is membership in a community in which the members all feel mutual gain from their relationships in the community and in which members fear loss of those productive and supportive ties. Here to illustrate bonding I offer a few stories from my experience running a business in residential remodeling and building.

I am sure everyone who thinks about it will discover that they have such stories to tell. To me this provides evidence of natural bonding, of the sorts of relationships which people form instinctively, following their own self interest.

But whenever government enters the bonding arena, gives commands about whom we must trust, and restricts what information we can share about the trustworthiness of others, it destroys the value of bonding which happens naturally.

5.5 Evolving System

As with common law, I expect that voluntary systems of law would evolve as circumstances evolve. During stable times precedents would become established, well known, and stable. As conditions change however judges would dislike applying old precedents to new conditions which those precedents did not fit. Judges therefore would look for, and eventually find, ways to modify precedent.

Contracts offer another way to change inappropriate old precedent. Traders who see that existing precedent does not suit their circumstances can write into their contracts new and more appropriate expectations.

Note that voluntary law evolves more freely than codified government law. To change government law requires an act of the legislature, but to change voluntary law requires only the mutual consent of all parties involved in particular instances. This flexibility limits the damage that can be done by mistaken law.

During times of change there will be confusion when old precedents clearly no longer apply but new precedents have not yet been established. And the greater or more rapid the change, the greater will be this confusion. Many people will call this "chaos," meaning "evil uncertainty." But others will see chaos as an opportunity, as a necessary condition before new, and probably better, order can take root.

Courts, in a free nation, might be viewed as a tool for managing chaos. In stable conditions partners entering contracts will not have much need for courts. They will know that contracts will be enforced if broken so, overwhelmingly, will comply voluntarily with their contracts. But when conditions change, making the meanings of contracts unclear, courts help, through their judgements, to establish new order.

5.6 More Risk at the Margins

Well within the borders of a free society which has had time to establish predictable property law, I expect wealth-creating businesses would trade with ease and efficiency. However, some free nation businesses would need to trade with outsiders in other societies where the rules are different or not established. The risk, in trading with someone outside your usual circles who does not fear your ability to seek redress, necessitates extra precautions.

But this uncertainty at the margins describes an opportunity for entrepreneurs. Profits may be high for those who can cross barriers of language, culture, and notions of what it means to cheat. (Surely the ability to cross this latter barrier explains why certain professions, such as lawyers and political lobbyists, can do so well in the U.S.)

Instinct, it seems to me, suggests means which entrepreneurs will try at the margins of the understood order. These means include:

 
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6. WHY WOULD THIS WORK?  YOU HAVE VALUE

Naturally you may mistrust an assumption which underlies this paper, that law can be entrusted to enterprise. Indeed I am not fully comfortable with the assumption. Probably I share with others, who were raised in the relative security of white middle class America, a naive trust in the ultimate force in the land, government law. And anyone exposed to the leftist media has been taught to imagine that business freed from government restraint will sell us all into slavery tomorrow.

But I am inclined to trust enterprise and to mistrust government. So I reach to understand the limits of private law. In theory I do not see a limit. Private law stands on solid ground: the economic might of the free individual.

As I understand economics, the organization which makes the best use of information should become the wealthiest and thus should be able to equip itself to fight off all less-well-financed would-be encroachers. And that organization, maximizing use of information, is one that gives individuals discretion to act upon information which becomes available to them.3 This is an organization of self ownership, of individual rights.5

Sometimes I describe society with voluntary law as a downflowing river. In the river each unit of water, driven by gravity but restrained by the riverbed and by surrounding water, typically travels long distances horizontally to gain only slightly in the downward direction. In voluntary society each person, driven by self interest but restrained by physical reality and by surrounding people, often travels a roundabout route to gain only slight reward. In the downflowing river of voluntary human society a person is never compelled to move uphill, against his own interest. A person may refrain from choosing till one choice offers gain.

 
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7. QUESTIONS THAT REMAIN

For me, as I wrestle to understand how free society works, several important questions remain. Some of these are:

 

To answer these questions I think we need economic theory. This theory would include: transactions costs attendant to both trading and communicating, productivity of individuals, productivity of firms, origin of states, and perhaps various schemes of property rights. In my limited knowledge Eggertsson2 provides the best summary of work that leads in this direction.

 
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8. CONCLUSION

You may now agree with me that society with private courts and enforcement differs radically from society as we know it. I find the picture frightening, it is so different. But I hope you will also agree that this picture results from libertarian values. It follows from shrinking the power of government and expanding the power of private choice and private property rights.

People need secure environments just as surely as they need food. And, just as surely as people work out ways to get food for themselves, people work out ways to secure a civil order for themselves. They do this in every culture in every time, whether or not a state claims for itself a monopoly in coercing order. While I admit that state-free law falls short of my ideals, I believe that seizure of the process of law by the state almost always makes things worse, not better.

I hope, in our envisioned free nation, that we can unleash entrepreneurial zeal to compete to satisfy our human need for security. Then we could relegate most crime, including notably street crime of the sort which terrorizes American cities, to our (private) museum of natural history. There crime could offer company to dinosaurs, pharaohs, czars and presidents. D

 
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References

1 Bruce L. Benson, The Enterprise of Law: Justice Without the State, Pacific Research Institute for Public Policy, 1990.

2 Thrainn Eggertsson, Economic Behavior and Institutions, Cambridge University Press, 1990.

3 Friedrich Hayek, Law, Legislation and Liberty, volume 1, University of Chicago Press, 1983.

4 Richard O. Hammer, "The Power of Ostracism," Formulations, Vol. II, No. 2.

5 Richard O. Hammer, "Might Makes Right: an Observation and a Tool," Formulations, Vol. III, No. 1.

6 Roderick T. Long, "Anarchy in the U.K.: The English Experience With Private Protection," Formulations, Vol. II, No. 1.

7 Franz Oppenheimer, The State: Its History and Development Viewed Sociologically, originally published in 1908, Arno Press reprint, 1972.
 

Richard O. Hammer, of Hillsborough, NC, for the time being works full-time on his hobby, the Free Nation Foundation. In the past he has worked as a residential builder and engineer.
 

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