Intro To AnCap: Private Law Pt. 1 - The Case Against Monopoly

{Editor's Note: This is Part 1 of a series in which I will explore the concepts of Anarcho-Capitalism, which I introduced here last week.  The series will follow the general structure of a class on Anarcho-Capitalism I am currently taking at The Mises Academy taught by economist and author of Chaos Theory: Two Essays on Market Anarchy, Robert Murphy.  Each week I will examine a different aspect of how free market forces could take over areas currently run by government in a hypothetical Anarcho-Capitalist society.}In my observation, most people who describe themselves as "libertarian" - including myself up until fairly recently - are minarchists in that, while generally believing in the principles of libertarianism, they still see the existence of a minimal State as a necessary evil for the purposes of basic law enforcement.  After all, how else would society take care of thieves, murderers, rapists, etc?  "Every society needs rules", the common objector might argue, "or else we'd have anarchy!"  And that is the first myth we have to dispel in order to understand law in an anarcho-capitalist society.  Anarchy means without rulers, but not without rules.The real question we must then ask is: who defines the rules, and who enforces the rules?In order to begin to understand how law would work in an anarcho-capitalist society we have to first determine the exact nature of the law.  Law is distinct from morality in the sense that ,while there are certain things most of us find immoral such as say, cheating on one's wife, this is not against the law. The purpose of law is not to impose personal morality on others.  Law is also distinct from law enforcement, in that different firms would provide legal rulings and enforcement of legal rulings, as opposed to a governed society where one entity, "the government" , has a monopoly on both legal rulings as well as legal enforcement.  And finally law is also distinct from legislation.  There would be no politicians or government agencies arbitrarily deciding what is "legal" and "illegal".So how do we understand law if it is disconnected from personal morality, enforcement, and legislation? The answer is that all law is bound up in a single, underlying principle: property rights.  This is the idea that everyone has sovereignty over their own property, and the law should protect or punish any infringements on the private property of another.  Now there is much debate about how property rights would be defined in a free society, and it's certainly a debate worth having.  But for the purposes of this course and my summaries we are making the presumption that this theoretical anarcho-capitalist society has well-defined property rights.An important point to note about law based on property rights in an anarcho-capitalist society is that, without a "State" to make arbitrary rules,  far fewer acts would be considered to be in violation of law.  In every case there would have to be a victim whose property rights have been violated making a complaint against the violator.  There would be no more "State Of California vs. Joe Anarchist" type cases.  No consensual acts between individuals would be considered a violation of anyone's property rights.  There would be no "War on Drugs".  There would be no undercover police officers dressed as trannies trying to ensnare desperate Johns looking to get their rocks off for a few bucks.   This being the case, it is safe to say there would be far less "crime" in a Stateless society.According to Murray Rothbard's definition , a State is

that institution which possesses one or both (almost always both) of the following properties: (1) it acquires its income by the physical coercion known as "taxation"; and (2) it asserts and usually obtains a coerced monopoly of the provision of defense service (police and courts) over a given territorial area.

The key word here is "monopoly".  The State's monopoly over the so-called "defense services" essentially results in one set of individuals, those belonging to the enforcement and judicial branch of the State, as being "above the law".  The police can bust into the wrong home and kill a man and usually face no legal recourse whatsoever.  If I went with a group of my friends into someones house and killed them - even if we had "the wrong house" - we would be immediately arrested by those very same police.  The standard objections to monopolies all apply to the State's monopoly over police and legal services and the result is unchecked police brutality, judicial corruption, rampant overspending, etc.   These are all very common objections I hear as to what we'd see from private police and judicial systems in an anarcho-capitalist society, and yet these are all things that are commonplace right now under the State monopoly system. Unlike under State monopoly, the firms providing judicial and legal services in an anarcho-capitalist society would be serving customers that they would need in order to function as a business.  Therefore, it would be very unlikely that you would see widespread police brutality and judicial corruption.Police services could be abusive, but an abusive police agency would likely not attract many customers and would quickly develop a bad reputation.  On top of that, individuals working under the auspices of a police services agency would not be immune from consequence as they are now.  An individual officer would be just as susceptible to prosecution for violating one's property rights in the course of duty as "ordinary citizens".  And police firms would be much less likely to hire individuals that have an abusive history.The same would go for private judges.  If a private judge were proven or even highly suspected of taking bribes or being unfair, that judge would develop a negative reputation and be far less likely to be hired by private judicial firms. These firms would want to have judges with good reputations in order to attract more customers.  In a system without a monopoly, judicial firms would have to compete on the basis of reputation, consistency and fairness.  Corrupt and unpredictable judges would not get very far in a free market, whereas in the State system judges often excel based on cronyism and political favoritism.  In a free market, only the best judges would rise to the top.It's easy to see the negative consequences of a state monopoly over the police and judicial system.  But how could it actually work? How could competing agencies fairly apply laws to everyone?  How would they determine what the law is without a single, overriding arbiter? These are not only good questions, they also serve as an excellent teaser for my next post, where I will tackle these very issues.In the meantime, below are two recommended readings from Mr. Murphy's course for those interested in delving deeper than my little summaries, as well as the link to the 1st part of my summaries.The Possibility of Private Law by Robert MurphyExcerpts On Courts From A New Liberty (Chapter 12) by Murray Rothbard (Skip Down To Chapter 12)Click here for Private Law Pt. 2 - How Can It Work?Receive access to ALL of our EXCLUSIVE bonus audio content – including “Conspiracy Corner”, “Degenerate Gamblers” and the “League of Liberty Podcast” by joining the Lions of Liberty Pride and supporting us on Patreon!