Anarcho-Capitalism: Possibilities and Limitations
As I argued below, private property anarchists need to demonstrate that private solutions will work for each branch of government to be privatized. The interesting thing is that each branch presents its own unique challenges. Let’s start with law-making. I have defended the view that morality is intersubjective; it works only when there is agreement on what is right or wrong. But at the same time no more is required. Agreement need not presuppose identical moral theories. Nor does it cause relativism; some moral systems and sets of rules are better than others. But if morality, then so is law. First, private — an in, subjective — law is an oxymoron. If you think that doing drugs is permitted, and I think it should not be permitted, then no judge can adjudicate our differences: there will be a war to the death as I try to knock the crack pipe from of your hand, and you (perfectly righteously, from your point of view) defend yourself. We must agree on what is right and what is wrong. But, again, we may come from very different directions. A may think using drugs should be permitted, because the natural law says so. B thinks the same, because he is a pragmatic and is skeptical of the success of any drug war, though if he could prevent people from doing drugs at 0 cost, he’d do it. C may be a utilitarian and believe that government paternalism is, as a rule, absurd. The government is not, C thinks, the guardian of the ignorant and stupid populace. And so on. Now the question is, how to establish agreement on a wide range of issues among the citizens of a town or country? Only two ways suggest themselves: either through voluntary negotiation or arbitrary legislation. If culture so permits and the administrative unit is small enough, rules are best established through custom, common law trial-and-error, natural law a la Rothbard, or economic analysis of law. But it can be that no agreement can be reached in this manner. Then the state can be useful in imposing law according to, say, majority rule. Even if some disagree, they have to persuade the majority and go through the motions of amending the legal code. At the very least, the law will be uniform over some population, something absolutely crucial to a functioning society. A combination of private and state solutions may be in the stars.
But once the law is however determined, I see no obstacles to competing private judges and arbitration agencies. Reputation will be key. In contracts a particular jurisdiction and judge could be specified. In torts, both parties can agree on a decent judge. It’s no accident that ancient Israel, once it was given the “law,” did not require the king but had judges only. An elaborate system of private lower and higher courts, appeals courts, specialized courts dealing with everything from disputes between financial companies to farmers’ quarrels, rules of recognition, Consumers Digest reviews, advice from industry experts, etc. will likely arise and will be able to supplant the present regime completely. The state judicial system we have now will disappear.
The final stage of any legal process, viz., enforcement, however, is, in my view, impossible to privatize. Once the question of what law is has been settled, and a judicial verdict, rendered, the offender must be overpowered, crushed (not in terms of the severity of punishment, of course, but in the sense of carrying out the sentence reliably). Only society as a whole, organized and represented by the executive branch of the state, can do so without fail. The community as a whole inflicts the punishment. Here the mayors/governors/etc. are merely tools of society ensuring that the (private) judges’ efforts are not wasted. For the offender broke the law governing the behavior of an entire people, and as far as judges are trusted — and why wouldn’t they be, unless there is (infrequent) corruption — everyone must be united in executing the sentence imposed on the criminal or tortfeasor.
This analysis suggests that in many disputes anarcho-capitalists and minarchists talk past each other, because they fail to disentangle the different problems posed by each of the three branches of government.
Update. In short, in a city, for example, I envision a government consisting of a part-time city council and a full-time major in command of a few tough deputies.