Alan Stevens - AWAH - Libertarianism, Freedom.
Customary Law, not Chaos, in Stateless Free Societies
People assume that without the state there would be chaos – high levels of insecurity and criminality. But being a predator, animal or human, is harder than it looks, and customary law systems, typical of free societies, will make it harder still.
In what is now over a hundred posts on this site, I have attempted to show that a world of free stateless jurisdictions would be incomparably better and safer than one dominated by massive and increasingly abusive and bankrupt states. No society could ever be ‘perfect’, an impossible notion, but free societies ruled under tried and true, long-lived laws rather than by transitory elites would be systematically more orderly and safer than state societies.
These laws, based on decisions made by judges where people have suffered physical or economic loss and have sought compensation from those whom they claim caused that loss, would constitute an evolving, stable, readily understood ‘customary law’. As in nature, where a wonderful diversity has naturally evolved, good things about modern societies, especially their prosperity and civility, are also the results of ‘natural’ selection – of good ideas, better technologies and more effective ways of cooperating, as illustrated by Adam Smith’s 1776 ‘Wealth of Nations’ and, in our era, by Matt Ridley in ‘The Evolution of Everything’. The key requirement, in nature as in human society, is freedom. The modern state, the negation of liberty, risks collapsing into disorder and chaos.
In this post I try to show how an ecological understanding of the natural world can help us understand why human societies tend to be naturally orderly and would be still more so without a state.
PRE-STATE CUSTOMARY LAW SYSTEMS
The good society is ruled by relatively unchanging simple laws made by judges. This principle has been forgotten in public life. The modern religion of the state leads to endless ‘legislation’. Politicians claim the right to make laws ensuring that they and their allied vested corporate interests can rob and bully much of the population. The result is the lawlessness of unstable political rule. But we have information about alternative customary law systems in historical and contemporary non-state societies.
In a libertarian society there is no legislation, just the enforcement of customary law. Customary law systems vary but they do not allow individuals to have legal privileges or immunities, such as those used by states to exploit the citizenry. The emphasis is on restitution. Restitution means payment by people who have inflicted harm, accidentally, negligently or deliberately, which is meant to compensate or ‘make whole’ injured parties.
In practice, customary law systems only judge people who offend against the fundamental Libertarian Non-aggression Principle (NAP). This holds that nobody may attack or threaten to attack anybody’s person or justly acquired property. All libertarian thought can be derived from this – to pro-liberty advocates - self-evident principle. The law never has to deal with consensual activities (‘victimless crimes’) made into ‘offenses’ by states.
In customary law systems, people tend go to those who show the best judgement, as inept or corrupt judges are weeded out. Jail sentences are not used as punishments (though transgressors awaiting trial might be locked up to prevent flight). This avoids the cost of supporting malefactors, and enables them to work to pay their restitution.
Restitution systems create an incentive to belong to bigger groups, such as extended families, clans or local associations, to ensure that court ordered restitution will be paid. The modern equivalent might be membership of an insurance scheme, or revived mutualistic Friendly Societies. Defendants who can’t (or won’t) pay are typically ostracized as outcast ‘outlaws’ without any legal rights and protections.
ENGLISH COMMON LAW WAS A MODIFIED CUSTOMARY LAW SYSTEM
In Britain’s heyday as a Classical Liberal society after the Glorious Revolution of 1688, the legal system was basically the English ‘Common Law’ (Scotland had a separate, continental-style legal system), which protected individual property and personal rights. It made the Industrial Revolution and the birth of the modern world possible.
The Common Law was an amalgam of separate customary law traditions. It was, admittedly, administered by a state monopoly on judgement. But at least its judges were protected from political intimidation and manipulation because they held their appointments effectively for life. They were also trained lawyers from families from the wealthier sectors of society which were committed to personal and property rights.
The basic remedy under the Common Law system is ‘damages’, i.e. financial restitution. There were ‘torts’ covering what are now treated as criminal offenses. Torts included actions for Assault (threatening to attack someone), Battery (actually attacking someone), False Imprisonment (detaining people against their will), Trespass (intruding on others’ property without their agreement), and Nuisance (reducing others’ enjoyment of their properties). Under the tort system crime victims could get proper compensation.
Torts are civil actions between defendants and plaintiffs. In free societies all cases will be ’civil’ cases. All have historical roots in age-old customary law practices. For a long time, the English county subunits called ‘Hundreds’ hunted down uncooperative defendants and acted as surety to ensure damage awards made against their inhabitants were met.
The Common Law also includes Contract and Land law. Contract Law, including the use of trade finance agreements (Bills of Exchange etc.), was developed by private courts at the great medieval trade fairs. The threat of exclusion from such fairs, and the need to maintain a good reputation, meant that merchants voluntarily accepted such courts’ rulings.
English monarchs, especially Henry II (the ‘father’ of the Common Law), intervened in hitherto non-state customary law – often to grab a share of restitution payments. The nationalised English Common Law was the result. But it still worked well enough to provide effective protection of personal and property rights in Classical Liberal England. Despite the later mass of intrusive legislation, it still gives English-speaking countries an edge in maintaining business friendly environments.
This is all very well, you may be thinking, but the fact that medieval non-state entities had customary law systems protecting individual rights does not prove such systems would arise again in newly stateless free societies. Surely, people assume, without the state there would be endless disorder and a high level of dangerous crime.
Historically, modern people beyond the influence of a modern state have spontaneously developed private or customary law systems. For example, cattlemen and miners in the nineteenth century Wild West developed sophisticated legal arrangements reflecting the practical difficulties of water supply or driving cattle herds to distant railheads, and of working minerals and mines (see ‘The Not So Wild, Wild West’ by Anderson and Hill).
Nevertheless, people need to understand why lawfulness, not chaos, is the natural state of society, especially free, non-state societies. The answer is that people, criminals and victims of crime alike, react to incentives which tend in the direction of less crime and more safety. These incentives operate more powerfully when there is no state to get in the way.
WOLF PACKS AND CRIMINALS
I propose to revert to evolutionary theory in the natural world, using an example from Paul Colinvaux’s great book ‘Why Big Fierce Animals are Rare’, to consider the constraints on would-be human predators or ‘criminals’. One chapter discusses how big predators, in this case wolves, actually behave. Two wolf populations were studied. One hunted wild sheep in the Arctic and another lived off moose on an uninhabited island in Lake Superior.
Bones last a long time in the cold. So, it is possible to analyse a lot of dead prey animals to work out how old they were when they were killed. The upshot is that being a predator, even a pack predator like the wolf, is not as easy as it might seem. A wolf pack could be expected to succeed in attacking even a healthy prime age moose, and still more so in attacking healthy adult wild sheep. And yet they almost never attacked them. Why not?
A large bodied predator has to kill every few days to eat. It cannot afford even a tiny risk of injury during each kill. If the chance of serious injury is, say, 1 in 100 attacks on healthy animals, then a predator will be unable to hunt after a year or so, and will starve.
Predators need to live a lot longer than that to leave enough offspring. Therefore, even an apparently low risk of injury to predators turns out to be unacceptable. The only prey that wolves attack is very young, injured or ill, or old. If predators target prey which is capable of putting up even a modest resistance, predation is just too risky to be a workable strategy.
What is the relevance to human society? There are basically only two ways to make a living. One is via productive voluntary co-operation with your fellow human beings. This is the tremendously powerful process that keeps life going and – if allowed to – steadily improves conditions. But the other way to make a living is by using force or the threat of force to rob, coerce or defraud productive people. In other words, by predation.
HOBBES WAS WRONG ABOUT NEEDING LEVIATHAN
State sponsored education, and countless fantasy TV cop shows, imply that the state is the only guarantor of order. Without it, there would be chaos and violent disorder. Life would apparently be ‘nasty, brutish and short’ as Thomas Hobbes wrote in ‘Leviathan’ (1651).
Hobbes believed that people are basically bad. They would always try to attack each other. Hobbes’s pessimistic view of human nature led him to concede supreme power to a legally privileged sovereign. This is a bad idea, but deep down most people unthinkingly go along with it. If people really are bad, then the state itself must comprise people who are bad. Why give bad people the right to abuse others without their having legal redress?
Hobbes was wrong about human nature. He has no explanation for why people like to co-operate with each other to create families, wider communities and the goods to maintain them. Libertarianism is based instead on the enlightened view that people are mostly good, but not that good and not all the time.
On this view the state is not just unnecessary but counterproductive. It is the place where humanity’s sad minority of psychopaths and evildoers can get together to grab the power they crave (see www.awah.uk post ‘Sociopaths and the State of Fear’). Indeed, the world hovers on the edge of WWIII mainly because of ill-intentioned statist warmongering.
HOW EASY IS IT TO MAKE CRIME PAY?
Prospective criminals face similar problems to the wolves discussed above. The prey, other human beings, are fairly similar to their attackers in size and strength. They will need to attack quite often to make crime pay – especially as what is stolen may not be easily saleable for full value. But each potentially violent encounter with a victim has a small but non-negligeable chance of ending with the capture, injury or death of the criminal.
To reduce risk criminals could specialise in attacks on (hopefully) unoccupied properties, or infrequent high value crimes such as kidnapping or stealing jewels or art. However, high value crimes tend to encourage investment in private security systems and personnel. And modest investments in locks or other barriers can thwart many burglaries.
Alternatively, criminals can join a gang, just like a wolf pack. A gang is more likely to prevail and to subdue individual victims without a fight, but not always. Some risk of capture, death or injury remains. Loot will have to be shared among gang members. And gang members may well betray their colleagues.
One implication of all this is that there is a natural limit on the economic returns to creating ‘chaos’, in other words ‘criminality’, in any society. This is suggested by examples where state police forces have gone on strike with little effect on the level of crime.
Unsurprisingly, few people persist in a life of petty crime even in our state dominated societies. Most criminals are young men who make rather meagre incomes from crime. Eventually they settle down and try other, less problematic, occupations.
ORGANISED CRIME IS CREATED BY THE STATE
When people think about very large criminal gangs they are really thinking about so-called ‘Organised Crime’. But organised crime depends for its profits on state prohibition of certain consensual activities. Examples include controls on prostitution, gambling, and supplying mood altering drugs including, on occasion, alcohol. It wouldn’t exist in a free society where such controls would not exist. It is apparently a truism in Criminology that organized crime cannot exist without the protection of corrupted monopoly police forces and judiciaries.
FREE SOCIETIES WILL BE LESS DISORDERLY
Free societies will be less disorderly because predatory activity by individuals or groups of individuals will be even less economically rewarding. There are many reasons why.
Potential victims in a free society will be better armed and so harder to subdue than state-disarmed citizens. The chance of serious injury or death to the assailant from each criminal attack in a free society will therefore be higher. Disorder would simply be less rewarding. The most dangerous places in modern state-run societies are where organized criminals and corrupted police forces are heavily armed, but the honest citizens have been disarmed.
It's not just that citizens of a free society will be able to protect themselves individually. They will also be willing to cooperate voluntarily in this area of life to create effective protection. And they will have greater resources to do so. Free societies will be more prosperous because there will be no damaging state intervention in support of privileged vested interests, and there will be no taxes.
In effect, law-abiding citizens will just gang up voluntarily on the bad guys. They will have competitive protection, detection and judgement agencies to call upon, perhaps associated with substantial insurance firms. These entities will have an interest in thwarting villains and in hauling them into court to get restitution payments and reimbursed costs.
In free societies criminals would have problems which they don’t have in a state system. They would have to make significant restitution payments whenever detected in wrongdoing. Such restitution would include the full economic costs of each crime, including repairs, medical expenses and the cost of replacing unrecovered stolen items. Also included would be court and detection agency costs.
There would also be no state subsidy for crime. Criminals would not live in prison at taxpayer expense, nor form useful contacts with other professional criminals there. Nor could they get state welfare or live off partners on welfare. If they could not pay restitution, they would have to work under indentured servitude to pay off the debt, or become a legally defenceless outlaw. Historically, outlawry forced villains to leave town or face attack.
Before leaving the topic of chaos in state versus free societies, it is worth referring to the destabilizing effects of areas of state-owned land such as roads, airports, stations, hospitals and parks. Ask yourself whether you feel safer at home or out on the streets or in a park. Would potentially threatening incomers find it harder to get established if all such places were privately managed and policed? A lot of our fears about chaos and insecurity are bound up with the existence of badly policed public areas.
WHY FREE SOCIETIES ADOPT CUSTOMARY LAW
It may be worth asking why legal systems in free societies would follow the customary or Common Law model. The answer is simply that there would be no state, and no monopolies. There would be no slow, expensive legal profession or leisurely tax-payer subsidized courts. There would be no ‘legislation’ creating hundreds of pointless crimes.
Societies tend to be orderly because most people want orderly productive lives, and because there are practical limits to the scope for anti-social individuals to create disorder and criminality, even in statist systems. Repeated attacks against individuals or their property are just too risky for would-be criminals. But in free societies customary law systems based on restitution make crime much less rewarding too.
Once the criminal association known as the state is off the scene, free societies will be able to develop competing effective and inexpensive ways to make criminality a bad career choice. Effective countermeasures to disorder or criminality would be adopted by potential victims, and be supported by public opinion. Without the state’s mania for regulation and punishment at taxpayer expense, courts can only focus on making victims as whole as possible by making restitution awards, which is the essence of customary law.