Phred wrote:You have never provided a convincing explanation of the benefits of competing law enforcement agencies.
I don't understand why this is a puzzle to any libertarian.
We exalt the benefits of competition in virtually any other industry, from food to retailing, education to health-care. What makes you think competition wouldn't be as beneficial in the field of protecting people's property rights?
There are many different ways of protecting people. From armed patrols to quick responses, from locks and fences to private guards. There are many different ways of identifying and collecting evidence against criminals. Some investigators are better or more talented than others. Some investigatory techniques are more productive. There is ample room for competition and innovation on those fronts.
In fact, we already have a thriving competitive market in private security, private investigations, private arbitration, debt collection, re-possessions and bounty hunting, all aspects of property right protection.
My objection has always been to competing judiciaries following competing legal codes.
Indeed this seems to be the main stumbling block. Let me start by explaining why I don't believe competing legal regimes. By "legal regime" I mean the effective combination of an underlying legal code with legal principles, rules (e.g. rules of evidence and interpretation), procedures (e.g. trial by jury) and institutions (e.g. court systems) which ultimately determines what constitutes a legitimate use of force within society.
A legal regime is an essential part, though only a part of the broader "law-and-order" service provision, the latter including pre-crime prevention, post-crime investigation, suspect apprehension, and sentence enforcement.
I will start by trying to explain why I believe a diversity of legal regimes is possible and benign. Following that, I will try to illustrate where competition and market discovery can contribute towards creating better legal regimes.
Diversity of opinion on questions of legal regimes is ubiquitous in our society. Issues of legal (mainly constitutional) interpretation have become a major issue in American politics. Even legal codes proliferate. At one end, every municipality has its own set of rules and regulations. Individual states have completely different, independent and semi-sovereign legal codes. Globalisation means that our interaction with people living under a different national government is increasingly frequent, yet such interactions tend to be peaceful, despite lack of a unified global legal code.
The choice, then, isn't between having a single, unified, universally-accepted legal regime vs. having a jungle of conflicting and competing ones. Rather, the choice is as to which mechanisms are used to determine which legal regime applies to different conflicts.
The current system provides that a regional democratic process (with varying size regions, from municipalities to the entire nation) determines, in a highly indirect way, the legal regime to apply within the geographic bounds of the region.
The alternative I am proposing would allow much more flexibility to the sides of the dispute to determine the legal regime under which their conflict is resolved. When such cooperation isn't reasonably possible, geography does kick in, with the (reasonable) choice of the land-owner determining the applicable legal regime for acts taking place on his land.
A reasonable concern is that when land ownership is fragmented, a proliferation of different legal regimes within a small geographic area (e.g. that traversed by most people every day) may lead to confusion and inefficiency. Yet today, millions of people commute daily across legal regime boundaries at the municipal, state and even national level. These boundary crossings are so unproblematic, that even scaled up, the issue will remain a non-issue.
A second concern is that while a single authority exists as the "adjudicator of last resort" to peacefully resolve inter-jurisdictional disputes at the national level, no single such authority will exist in an anarchy. First, higher-level enforcement isn't available to resolve international disputes. The possibility that such disputes between "responsible" nations, originating from inter-individual conflicts and escalated to the national level, would result in armed conflict is so remote as to be unthinkable.
Reason dictates and experience shows that governments are much more likely to result to force than would private organisations, primarily due to the ability of government decision-makers to externalise the cost of violent conflict in ways not available to private organisations. It then follows that armed conflicts between the anarchic equivalents of national states (be it enforcement agencies or insurance companies) result from an escalation of a dispute between their clients is even more remote.
Even at the national level, inter-jurisdictional disputes are rarely raised to the national level for resolution. How many Supreme Court decisions nowadays deal with conflicts between two states over an issue originating in a dispute between their respective residents? States (and lower-level jurisdictions) have long since adopted conventions and understandings that allow them to resolve jurisdictional issues without resorting to a higher authority. Again, private organisations would be even more motivated, creative and innovative about similarly finding peaceful resolution to jurisdictional issues.
Finally, you correctly bring up the point that disputes over the interpretation of the NAP are not just possible, but highly likely, and not just over marginal, rare or inconsequential issues. Abortion is but the most obvious example.
The NAP would serve, in the society I am advocating, a similar role to that of the US Constitution in contemporary American society. Disputes over constitutional interpretation, as mentioned above, are both common and important to many people. The issue of abortion, again, comes to mind. Yet despite these deep conflicts, American society (with the rare and marginalised exception of those bombing abortion clinics) isn't descending into an armed conflict.
As current events in Egypt demonstrate, having a written constitution and the other institutions of democracy is far from a guarantee of peaceful resolution of political conflicts, nor is the concentration of physical power in the hands of a single organisation. What explains the stability of the American society in the face of deep conflicts over constitutional interpretation, compared with the instability of Egyptian society?
The answer, I claim, is that while Americans are deeply divided over what the Constitution means, there is a very broad consensus over how such disputes are to be peacefully resolved. The US Supreme Court is acknowledged by all but a tiny and inconsequential minority to be the final arbiter of constitutional questions. Even those who disagree, often deeply, with its decisions, agree to abide by them.
Going back to an NAP-based anarchy, disputes over interpretation of the NAP are far from fatal - provided only that there is a broad consensus over what constitutes a legitimate means for resolving those disputes. The consensus, I suggest, which will naturally emerge would be focused on the basic principle of using peaceful means to resolve disputes, together with a "short list" of highly-credible judicial authorities deemed acceptable at resolving those disputes.
So, is abortion going to be legal? The answer is that we are probably going to go back to a pre-Row vs. Wade world in which the answer varies by location. Yet just as border skirmishes between abortion-allowing and abortion-prohibiting states didn't take place before 1973, so is the diversity of legal attitudes towards abortion unlikely to result in violence in an NAP-based society.
Of course just because legal regime proliferation is allowed need not mean that actual regimes will differ radically. Some uniformity and consistency of legal regimes is highly desirable. It makes people's lives more predictable and less risky. Market processes will thus naturally result in (partial) convergence. Just as the traffic signs used by different states follow a consistent pattern, so would we see standardisation of legal regimes within society.
As promised, let me write a few words about the great advantages of the market process in determining (and continually improving) legal regimes. You and I don't trust government to decide what car we will drive, what food we will eat, or what (peaceful) organisations we should belong to. In part, this is because we value individual freedom in making personal choices. In part it is because we recognise that the market process whereby organisations compete for providing consumers with desired products and services is one resulting in the best possible results in virtually all industries.
Many of the aspects of a legal regime - standard of proof, the use of juries, rules of evidence, allow many choices all consistent with our basic notions of justice. How is society to choose between them? The current process puts politicians in control, either directly (through legislation) or indirectly (through the nomination and confirmation of judges and justices). As a libertarian, you must hold such process as suspect. Can the free market do better?
The key difference between my choice of food and car, and the choice of legal regime seems to be that while my food and car choices affect mainly myself (as long as I don't violate other people's property rights), legal regime is inherently only applicable in cases of dispute, i.e. cases involving not just myself, but also others. The choice must be mutual, it would seem.
In some cases, making that choice mutually is fairly straightforward. Whenever a contract is explicitly signed, it can (as international contracts today typically do) clauses stipulating the legal regime (usually simply jurisdiction, but sometimes also arbitration procedures) to apply in the case of dispute. The contract can be explicit, but it can also be implicit. For example, when I enter a shopping mall, I implicitly agree to abide by their posted rules.
But what about violent crime? Nobody signs a legal contract with their burglar or rapist! Well, not explicitly, anyway. But an implicit contract may well be in place. Since the rapist and his victim are generally found in the same physical location, both of them implicitly agreed to whatever terms and conditions that owner of the land where they both find themselves set as condition for entering his land.
Land-owners wishing to allow others on their land (e.g. owners of shopping malls) have an interest in subscribing to a good legal regime - one that balances the protection from violence desired by their customers with the concern about false conviction and excessive fines that an overly-harsh regime would create.
I have more to say about disputes arising without physical proximity (e.g. pollution), defence against unreasonably pro-resident legal regimes and the use of insurance companies to mitigate both, but I will stop here for now.
You seem to believe it is advantageous to have many different agencies (whose method of operation necessarily involves utilizing force against humans who object to having that forced used against them) making decisions that may run exactly counter to three similar agencies down the street.
They may, but are highly unlikely to.
Consider how police works in the United States. Generally, every town has its own police force, as does every county. Does that mean that police forces from different town regularly engage in gun battles? Of course not. When a suspect attempts escape, neighbouring police forces are much more likely to assist than to fight each other. Police forces are subject to democratic control. Are you concerned about the residents of a small town electing a police chief with the understanding that he will fight the police forces of a neighbouring town when they escape having committed a crime there? The very notion seems outlandish. Why then do you expect such occurrences to be any more common in an anarchy?
At present, they don't prohibit such actions. See "citizen's arrest".
A "citizen arrest" is an example of government authorising others to use force in very circumscribed circumstances. But say I set up a competing police force, adhering to all the legal restrictions to which the current police force is subject. My officers will respect civil rights, read suspects their Mirandas, and bring them in front of a judge following precisely the same procedure as government's officers.
If I tried that, I would be arrested on kidnapping charges in no time.
Without a single overarching authority to decide among conflicting rulings, there is chaos.
The focus of some minarchists (such as yourself) on the need for a single, universally-accepted "judge of last resort" has made me think of the concept of an "ultra-minimal state" (different from Nozick's notion of the same term). In my ultra-minimal state, government comprises exclusively of a Supreme Court.
That court is broadly acknowledged (as is today's USSC) as the ultimate judicial authority, and acts primarily as a court of final appeal when decisions of lower (and private) courts are challenged. Its decisions, in turn, are enforced by private organisations.
What such an ultra-minimal state satisfy your concerns over anarchy?
Free men are not equal and equal men are not free.
Government is not the solution. Government is the problem.
- By Tainari88
- By Negotiator