“Let us, then, examine in a little more detail what a free-market defense system might look like. It is, we must realize, impossible to blueprint the exact institutional conditions of any market in advance, just as it would have been impossible 50 years ago to predict the exact structure of the television industry today. However, we can postulate some of the workings of a freely competitive, marketable system of police and judicial services. Most likely, such services would be sold on an advance subscription basis, with premiums paid regularly and services to be supplied on call. Many competitors would undoubtedly arise, each attempting, by earning a reputation for efficiency and probity, to win a consumer market for its services. Of course, it is possible that in some areas a single agency would outcompete all others, but this does not seem likely when we realize that there is no territorial monopoly and that efficient firms would be able to open branches in other geographical areas. It seems likely, also, that supplies of police and judicial service would be provided by insurance companies, because it would be to their direct advantage to reduce the amount of crime as much as possible.So here we have a world where there are multiple competing protection services. Some protection services might have an in-house police force and law courts, although in practice these two functions might well be performed by separate firms.
One common objection to the feasibility of marketable protection (its desirability is not the problem here) runs as follows: Suppose that Jones subscribes to Defense Agency X and Smith subscribes to Defense Agency Y. (We will assume for convenience that the defense agency includes a police force and a court or courts, although in practice these two functions might well be performed by separate firms. ) Smith alleges that he has been assaulted, or robbed, by Jones; Jones denies the charge. How, then, is justice to be dispensed?
Clearly, Smith will file charges against Jones and institute suit or trial proceedings in the Y court system. Jones is invited to defend himself against the charges, although there can be no subpoena power, since any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating. If Jones is declared innocent, or if he is declared guilty and consents to the finding, then there if no problem on this level, and the Y courts then institute suitable measures of punishment. But what if Jones challenges the finding? In that case, he can either take the case to his X court system, or take it directly to a privately competitive Appeals Court of a type that will undoubtedly spring up in abundance on the market to fill the great need for such tribunals. Probably there will be just a few Appeals Court systems, far fewer than the number of primary courts, and each of the lower courts will boast to its customers about being members of those Appeals Court systems noted for their efficiency and probity. The Appeals Court decision can then be taken by the society as binding. Indeed, in the basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.
Every legal system needs some sort of socially-agreed-upon cutoff point, a point at which judicial procedure stops and punishment against the convicted criminal begins. But a single monopoly court of ultimate decision-making need not be imposed and of course cannot be in a free society; and a libertarian legal code might well have a two-court cutoff point, since there are always two contesting parties, the plaintiff and the defendant.” (Rothbard 2009: 1051–1053).
The hypothetical scenario of privately provided justice that Rothbard envisages faces a bizarre problem:
“Jones is invited to defend himself against the charges, although there can be no subpoena power, since any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating.”In fact, there are two problems here.
Consider Rothbard’s defence of torture:
“ ... police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.But how can such torture of mere non-convicted suspects be consistent with Rothbard’s principle that “any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating”? Apparently in the Rothbardian paradise a private law court cannot enforce or even issue a subpoena for a person against whom a suit has been brought or charge filed, but police can torture such a person! We have here a glaring, not to mention grotesque, contradiction.
As a corollary, police can never be allowed to commit an invasion that is worse than, or that is more than proportionate to, the crime under investigation. Thus, the police can never be allowed to beat and torture someone charged with petty theft, since the beating is far more proportionate a violation of a man’s rights than the theft, even if the man is indeed the thief.” (Rothbard 1998: 82–83).
The second problem is this. If Smith files charges against Jones with Defense Agency Y and their court system, but Jones simply refuses to appear or even respond to the charges, what can Defense Agency Y do to settle the dispute? The idea that a court can fairly and rightfully declare Jones innocent or guilty without Jones defending himself or responding to the charges is absurd (or perhaps trials in absentia will be a normal practice in Rothbard’s anarcho-capitalist world). Yet if Jones simply refuses to recognise the law court and accept its authority, the law court cannot issue a subpoena or force Jones to appear, since “any sort of force used against a man not yet convicted of a crime is itself an invasive and criminal act that could not be consonant with the free society we have been postulating”! We have a toothless and probably useless justice system.
Suppose the private law court finds Jones guilty in his absence and issues some punishment. But then Jones goes to his own law court and manages to get a ruling of “not guilty.” At the point, it is not clear that anything can be done. For which court’s ruling should be followed?
According to Rothbard, in the “basic legal code of the free society, there probably would be enshrined some such clause as that the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty.” In this case, if there are two court rulings of “guilty” against Jones, then supposedly force can now be used. But it will presumably only be attempted by the court system or private protection agencies that Smith hires. No other court system or private protection agencies will bother bringing Jones to justice, for they have not been paid to do so.
Furthermore, suppose that Jones is a very wealthy and powerful man with his own private security. He could use force and violence to fend off any attempt to bring him to justice with private security personnel. What is to be done? Already this is a world that could collapse into violence and anarchy as those sufficiently rich enough simply refused to submit to specific private law courts or private protections agencies that ruled against them. It is more likely to be a world where the very rich and powerful are simply able to evade justice and those not wealthy enough will not be able to obtain justice.
On the latter point, we must also remember that in Rothbard’s anarcho-capitalist system there is no longer any criminal law in the current sense. All crimes, even the most heinous, would be mere matters for civil or private law, in which plaintiffs sue, or bring action for redress, under tort or contract law.
Any person who commits a crime under current criminal law would become a mere tortfeasor under Rothbard’s anarcho-capitalist justice system, and there would then be no obligation on society at large or any institution to arrest, try, or punish any criminal unless a plaintiff is willing and able to pay for a private law suit or tort (Rothbard 2011: 417). Needless to say, if any prospective plaintiff is too poor to afford legal fees, then no justice can be obtained. Even the worst crimes imaginable – murder, assault with grievous bodily harm, rape and so on – will not be punished if victims lack the money to bring a suit under private law. Hence the Rothbardian “justice” system would not even deserve that title. It would be a grotesque parody of justice.
Even more fundamentally, if you cannot even afford the cost of protection services, then you cannot even obtain basic police protection or basic protection under whatever private laws exist.
And what are we to make of this?:
“Of course, it is possible that in some areas a single agency would outcompete all others, but this does not seem likely when we realize that there is no territorial monopoly and that efficient firms would be able to open branches in other geographical areas.” (Rothbard 2009: 1052).If there is a protection agency in some areas that outcompetes “all others” it is not difficult to see how such an agency would obtain a monopoly or near monopoly on “protection services” in that area, driving its competitors out of business. The barriers to entry in that area might make it highly unlikely that “efficient firms would be able to open branches” there. That can only mean that in certain areas there would have a de facto government, the very thing that Rothbardians say is the ultimate evil. The only difference is that, if cannot or do not want to pay the monopoly protection agency, you get no basic police or justice services, which means we would have a strange de facto government only interested in those rich enough to afford its services.
In fact, Rothbard’s theory of monopoly is a strange one. Rothbard thinks that true “monopoly” is really only a right of exclusive production granted by the state to some entity (Rothbard 2009: 670). But this effectively means that if, in an anarcho-capitalist system, exclusive production of private protection emerged by one business, we would have a de facto government, but, strictly speaking, according to Rothbard, it isn’t really an objectionable monopoly because it emerged on a free market. Therefore even Rothbardian libertarians could not really object to such a de facto government emerging in their utopian world.
Rothbard, M. N. 1998. The Ethics of Liberty, New York University Press. New York, N.Y. and London.
Rothbard, M. N. 2009. Man, Economy, and State with Power and Market. The Scholar’s Edition (2nd edn.). Mises Institute, Auburn, Ala.
Rothbard, M. N. 2011. Economic Controversies. Ludwig von Mises Institute, Auburn, Ala.