Thought Experiment 3 - Justice or the State
Updated: Oct 28, 2020
Can there be justice without the state? Yes! Most emphatically yes is the answer.
Can there be justice without the state? Yes! Most emphatically yes is the answer. Human beings always create frameworks of law and effective enforcement whenever the value of the property rights (including in Libertarian terms in one’s person.or body) protected by legal system exceed the costs of administering and implementing it.
The way to understand the state is a big hole in the fabric of justice and therefore in society itself. The hole is like the open lid of Pandora’s box. Through it emerge most of the avoidable evils of the world. Most violent death and maimings, most crime, all of mass unemployment and economic depressions, and most poverty, tension, fear and hyper-inequality, stem directly or indirectly from State’s existence.
In a just, free society everybody is equal before a simple properly operated system of dispute resolution. Equitable dispute resolution is the law’s only proper purpose. The state is a criminal association of individuals that asserts its collective legal immunity. Individuals acting in its name rob and bully others and then make sure that their victims have no right to go to law claim restitution or obtain injunctions against them.
The only way to do that is for the criminal association to create a monopoly on judgement and enforcement. The state has to suppress the natural tendency of people to create competing (or at least potentially competing) judgement and enforcement agencies. At bottom a state is nothing more than a monopoly on legal judgement and on the enforcement of judgement.
Everything else that a state does stems from this simple premise and original monopoly. And the everything else is a tissue of poor value services, and downright useless or dangerous activities, and interventions. The concealed, true effect is to predate and undermine productive people and their productive Western cultural values, for the profit of social top predators.
Time for another thought experiment to help explain this. We shall employ a few more islands on our very useful water planet far, far, away (See Thought Experiments 1 and 2 in recent posts). Let’s take an island called ‘England’ one called ‘France’, and a third called ‘New Plymouth’. These islands are identical in every way. They all have a fair selection of land, fruit trees, potatoes, fish, vines and lovely beaches. With careful husbandry these ‘desert islands’ can support a population at a reasonable standard of living permitting some leisure.
Enter, stage left, another providential storm at sea to move the story along. Three identical boatloads of citizens are unceremoniously thrown up on the shores of the three islands. Everything depends on what the castaways decide to do. Of course, people just could wander around fecklessly depleting food resources with no thought to managing, protecting and improving them. The end result would be starvation for most if not all of these people.
We are going to assume that on these three islands the people quickly realise that that is a bad idea. They can see that some kind of structure permitting purposeful management of the various resources is necessary for survival. The good news is that a successful structure will, with work and care on the part of all, be enough to create a prosperous society.
Immediately almost everyone realizes that the threat is going to be free-riding predation from other human beings. Some people will try to harvest food without participating in its production. This problem will show itself in disputes between individuals which are based on proto-property notions. People instinctively recognize that if they mix their labour with hitherto unclaimed and unworked land or resources they homestead it, in libertarian parlance, and so they own it. It becomes their justly acquired property. They expect to be able to defend it with violence if necessary.
But the natural tendency is understandably to prefer to go to law peaceably to get judgement, normally in terms of restitution and/or injunctions in non-state or barely state societies. Restitution is a court judgement that an amount of resources be handed over as compensation by malefactors (intentional or otherwise) to those who suffer loss at their hands, or to their heirs in the case of unlawful killing. An injunction is a court order to stop doing what you are doing wrong. Disobedience may result in a fresh order for restitution.
If these orders aren’t complied with then in pre-state societies the offender is ostracised (this was an Athenian custom which exiled individuals deemed to be troubling society’s peace). Non-compliers with judgements had to leave. They become outlaws. Outlaws could be killed if they hung around and their stuff taken because they are no longer protected by the law. Hence the word ‘outlaw’. Same difference perhaps in the end.
These types of arrangements have been documented from New Guinea villages, medieval Ireland and so-called Dark Age societies across northern Europe. In fact they are found to be characteristic of non-state societies wherever we have information. The law pre-dates the state. The key source for the whole matter of non-state legal institutions is still ‘The Enterprise of Law’ (1990) by Bruce Benson. States merely corrupt and distort the legal principles and institutions that people would establish for themselves.
Right, so back to our thought experiment with our three recently populated islands of France, New Plymouth and England. Here’s what happens when the people on each island get together to discuss how disputes are to be resolved. In other words, they meet to create a system of adjudication or determine the law. All societies have done this. You don’t need a state to do it. You never did.
For the first time, differences between the islander populations arise as the same conversation gets going on each island. In each population there is a large vigorous family called the Jones family. The Jones family leader gets up on every island and says:
‘You should appoint the Jones family as the sole arbiters of every dispute. Leave it to us. We will specialise in making and enforcing legal decisions. We will become the most expert judges there can be. Nobody else need bother to waste their time on making judgements; you can specialize on growing food instead.”
Now how do people react to this proposition on each island?
1) In England John Bull gets up and says:
‘How do we know that if we give you a monopoly on judgement you will charge reasonable court fees? Will you act efficiently and openly when you face no competition? What will we do if you cease to judge wisely? Is it wise to let you judge cases where you have a conflict of interest? For example, what if your cousin steals food from us, or your brothers throw one of us off our land?’
The assembled citizenry concludes that no monopoly on judgement can be allowed at all. Such a monopoly represents a serious moral hazard. It is a recipe for waste, delay and corruption. Unwittingly the English have thereby narrowly avoided establishing a state. The state is, again, nothing but just such a judicial monopoly.
The custom develops of choosing a judge for each case from amongst the men and women of substance and recognized sound judgement. These judges may act purely for the status that judging may bring or they may receive some customary compensation. But their real incentive is to act wisely and expeditiously, or future cases will be tried elsewhere. The bigger the society that develops on the island of England the more likely it is competing specialist full time judges and professional lawyers will appear, as in medieval Ireland.
By accident, and one can hardly avoid the suspicion that perhaps history is largely accidental, the island of England has become a libertarian society. There is formal recognition of, and reliable legal protection for, property rights in agricultural, mineral and fishing assets. The result is prosperity because farmers, miners and fishermen know that they can keep all the fruits of their labour for their families and work accordingly.
Some English individuals have a few hours of daily leisure left over after achieving an acceptable subsistence. They decide to work more to accumulate extra produce (savings/financial capital). The property rights framework steadily develops through case law – successive judgements – to embrace and protect savings and investment. More and more labour saving devices are built by workers sustained by the saved produce. The standard of living rises permitting higher wages. It also permits still more leisure and saving. A virtuous circle gets going. It is dubbed an ‘Industrial Revolution’. Business flourishes. It is not hampered by taxes or licensing requirements or legislation (new artificial laws) since there can never be any.
[PS: A historical Note. This rather playful thought experiment clearly refers to the historically different experiences of Britain and France in the 18th Century. Yes I know that Britain did in fact have a monopoly of jurisdiction. It was a state. But the monopoly of jurisdiction in England was unusually constrained in practice. After decades of infighting under the Stuarts, the Glorious Revolution of 1688 confirmed England in possession of an independent judiciary. Judges could not be sacked for disobedience. The state could not intimidate judges or juries, unlike in France where no such independence was conceivable. Judges had a great deal of independence. They were allied with - often the relations of - aristocratic and gentry property owners and their City allies. All were were determined to uphold private property, which was understood in Britain and America to be the basis of liberty.
The judges continued to develop the English Common Law case law tradition. It closely resembled the early medieval non-state restitution (damages) based systems from which it sprung. The rest of Europe was stuck with Roman Law, in other words the legal relic of an all powerful state. The mystery in modern European history is the largely libertarian, and incredibly successful, entity that was Britain in the long 18th Century from 1688 to the Great Reform Act in 1832.
If Britain’s success in reality was not that of a perfectly libertarian society, it was the result of something functionally very close to one, including in its legal arrangements. And so without further ado let us return to our thought experiment and consider France.]
2) Now on France the conversation unfolds a little differently. Marie gets up and says:
‘Monsieur Jones you are a very handsome and clever man. I can see that any normal person might be tempted to just feather his family’s nest. But I would be happy to trust a brave man such as yourself, and your descendants, to arbitrate all the disputes without exception.’
Despite some muttering from the more practical spirits in the group, Marie’s motion is carried. The result is a hereditary monopoly on judgement and enforcement for the Jones family. In other words, a state has come into being. Marie promptly marries Monsieur Jones and almost immediately produces an heir. He will be a hereditary judge and eventually king. Not wishing to be overthrown by his subjects, the king does a passable job of protecting their farms and fisheries from predation, except his own predation, of course. After all the royal court does need to tax peasants to meet its unavoidably lavish expenses.
The king also collects income by awarding banking and business monopolies. Despite reams of sometimes well-intentioned king-made laws – legislation and regulation – savers and entrepreneurs are not free to raise living standards. Instead, the French state executes thousands of unlicensed entrepreneurs for infringing on crony corporate preserves. (For more see Hernando de Soto’s ‘Why capitalism succeeds’.)
Taxes on the Ile de France can easily be imposed, if less easily collected. Nobody after all will win a judgement against the king’s tax collectors in the king’s own court. Jones family offspring, servants and offspring, known as ‘aristocrats’, are let off taxation in return for propping up the regime..
The only problem is that the nearby island of Britain is visibly growing far wealthier without a state to speak of. Dissatisfaction in France becomes revolution via a series of unfortunate accidents, again. The king loses his head. Unfortunately, the net effect of the upheaval and bloodletting is the imposition of the Code Napoleon. This artificial law is so inconsistent with human flourishing and liberty (but I repeat myself) that the French conspire to inflict it on England, so far unsuccessfully. It all just goes to show how unsound judicial and therefore political arrangements can make all the difference in the surprisingly long term.
3) And lastly in New Plymouth Mr. Brewster gets up and says in reply to the Joneses:
‘We must instead establish a religious commonwealth where nobody will have any private property rights. There can be no property disputes and need be no judges or lawyers (widespread applause). The elders will ensure that everyone shall work for the common good and not as he sees fit for his own prosperity. To coin a phrase, it will be ‘to each according to his needs, from each according to his means’ (more applause).
The gathered faithful joyfully accept this proposal with enthusiasm. Anyone could see that it represents a truly higher form of ‘social’ justice. Within a year they are all starving.