Previously I’ve written about how a private criminal justice system might look, you can find it here. However, in that piece I didn’t go much into the nuts and bolts of how private courts might work in a libertarian society.
Objections To Private Courts
There are numerous potential issues we can imagine if all courts were private. Who decides which courts are legitimate? How do courts get authority? What happens if a corrupt court takes a bribe? Who pays for the court? What if an accused person doesn’t want to participate in a trial? How does a poor person get legal representation?
In this piece I’d like to quickly offer some solutions that entrepreneurs may come up with if we had a free market in courts.
If a dispute can’t be settled outside of court, the best case scenario would be for all sides to voluntarily agree to let a court decide the outcome.
So let’s look at a scenario. You get carjacked and roughed up. Your insurance company pays you restitution through a violent crime insurance policy. The insurance company then wants to find out who committed this crime, take them to court to make sure they’re guilty, then extract restitution from the criminal to cover their losses. They hire someone to gather evidence and put together a case. They find out that the evidence points to me being the criminal. They approach me and claim I own them $100,000 in damages for the restitution they had to pay as well as the costs of gathering evidence and finding me.
At this point, we could settle out of court and agree to have me pay them back over time. Or if I’m viewed as untrustworthy, they could offer to let me join a prison work camp that keeps my salary and pays my debt for me. Or I could refuse to pay them.
If I refuse to pay, they’re going to want to find a way to justify using force against me without upsetting the public and without starting a war between them and the security service I may have hired to protect me. If I do have a subscription with a security service to protect me, I’m sure that service wouldn’t want to protect me against the victims of my violent acts. So they would probably have a clause in their contract with me that voids their responsibility to protect me if I’m found guilty of a crime by a reliable court.
So at this point I’m refusing to pay restitution and the insurance company can’t risk using force against me. They need a reliable court to find me guilty before they can proceed in extracting restitution from me by force. How do they get me to voluntarily agree to go to court and abide by the ruling? Even if I’m innocent, the deck would appear to be stacked against me. Couldn’t they just hire the best attorneys and make me pay for their costs after I lose? Wouldn’t they have a friendly relationships with most courts and judges?
Even if I were innocent, I wouldn’t want to take my chances under this scenario…unless my accuser lets me pick the judge and their prosecutor! What if the insurance company is so confident in their evidence that they believe any competent attorney in the world could prosecute the case and any competent judge/jury in the world would unanimously find me guilty? Why wouldn’t they let me pick their prosecutor? Of course they’d make sure it would be an attorney that has a certain level of certification from a reliable certification company. I couldn’t just pull in a bum off the street.
If an accuser gives me the terms that I get to pick my own attorney, I get to pick their prosecutor, and I get to pick the judge/jury with the understanding that I immediately agree to surrender myself if I’m found guilty, I’d say these are pretty good terms whether I’m guilty or innocent. Of course the loser of the trial would also agree to pay all attorney and court costs.
If this offer became standard in criminal trials, it eliminates almost all possible objections to a private court system. The wealthy can’t push around the poor with superior attorneys or with friendly local judges. And since both sides are voluntarily agreeing to the outcome, they are establishing authority in the court’s decision.
This also has the added benefit of protecting innocent people. With this extremely high standard, I can’t image many accusers bringing people into trial unless they have overwhelming evidence.
Forcing Someone Into A Trial
No one would have the right to force someone to participate in a trial. Such an act would be considered nothing less than kidnapping if anyone other than a government did it today. Now I’m not saying that it won’t happen, just that it wouldn’t be standard practice.
One example of a possible scenario where a defendant might be kidnapped and held against his will is in the case of a particularly heinous crime with clear evidence of who the guilty party is. For example, if someone walks into a crowded area and opens fire on a crowd of innocent people, but is apprehended without getting killed himself, he would probably be held captive until a court rules on his guilt and liability. In this case it’s clear who committed the crime as he was apprehended in the act with numerous witnesses!
So who decides which defendants get held captive before trial and which don’t? There won’t be a universal standard, but the decision would be based on potential risk and liability. If someone is held hostage, and is later found not guilty, the people who held him hostage have committed a grievous rights violation. One which would call for a potentially huge restitution payment to the person who was held against his will. So if someone is to be held against his will before a trial, the people holding him better be sure of his guilt! Money isn’t the only consideration. If an organization gets the reputation of consistently getting it wrong and violating innocent people’s rights, I can’t imagine they’d stay in business long.
Trial In Absentia
The final issue I’ll address is what happens when someone doesn’t willingly participate in a trial? We’re assuming here that the accused wasn’t caught in the act of a heinous crime like the above example.
At this point there’s no choice but to try him anyway. This posses a very real problem though. How do we get the authority and justification to use force against him if he’s found guilty? After all, if I’m picking the judge, jury, and attorneys wouldn’t it seem like I’d intentionally try and stack the deck? Or at least wouldn’t it be viewed that way even if I was completely fair?
When thinking about this problem, one thing to keep in mind is that there would be no immunity like there is today with government. If a court today finds someone guilty and throws him in prison, but later it’s discovered they’ve made a mistake, the people that threw him in prison and found him guilty can’t be held accountable. In a stateless society, there is no immunity. So if I do stack the deck and railroad an innocent man, I’m liable for any damages I caused him. Even the attorneys and judges involved could have some liability if it’s shown that they were negligent in trying the case. This accountability alone will force an accuser to attempt to put on the fairest trial possible. The last thing they need is to take more losses by violating the rights of an innocent person.
How would the process look? The best thing to do to make sure it’s a fair trial is to find some kind of service that specializes in representing people who refuse to participate. There could be any number of law firms out there competing with each other to prove how fair they are. Various rating and certification agencies could exist to rate these firms.
Once the accuser picks a firm that has a good reputation in representing people in absentia, the same standard could apply as if the defendant participated. The firm representing the absent defendant could be offered to pick the prosecuting attorney, court, and judge/jury. This also has the added benefit of reducing or eliminating liability for the accuser if they do convict an innocent person. The accuser could claim that they did everything possible to put on a fair trial and that the bulk of the liability falls on the law firm that unsuccessfully defended the innocent person. This potential liability could also ensure a vigorous defense.
Corruption will always be a concern when money and force are present. A private court system will not be immune from people attempting to pervert the scales of justice . If there’s a law suit that involves a large amount of money, why wouldn’t one side or the other attempt to buy off someone? If my side could win millions, it’d be worth a several hundred thousand dollar “investment” to buy off a juror or to pay the opposing lawyer to throw the case, right? And if a juror or lawyer could get a large payday so easily, why not take it?
I’ll admit this could happen, but with full liability I can’t imagine it happening very often. If a bribe is taken and is discovered, the bribe taker would be liable for all damages done. If an innocent man was forced to pay a settlement, the bribe taker would owe that innocent man back the money he was forced to pay along with any other damages he suffered as a result of being put in such a position. The briber would also be in the same boat when it comes to liability. Even a hint of someone taking a bribe could ruin someone’s reputation and career, whether or not any actual evidence is ever discovered of a bribe.
These disincentives would make bribery a rare occurrence.
No Perfect System
In thinking about if society should be organized with a central government in some capacity or if it should be completely left up to the market, we have to realize that no system will be perfect. Mistakes will be made. Bad people will do bad things.
The idea here is to find a way to eliminate all systematic violence. Even the smallest government rests on the ability to use taxes to finance it. Even the smallest government necessitates a monopoly of the courts, thus forcibly keeping competition from innovating and providing superior services to consenting adults. Perhaps worst of all, even the smallest government will be its own final arbitrator in whether or not one of its decisions is just and whether one of its agents is liable for their actions.
When government is allowed to be the final arbitrator of all rights and wrongs, even the smallest and most well checked government will abuse this power and grow. Only a completely stateless and private court system will prevent this inevitable erosion of individual liberty.
You may also like these other posts by Mike Tront: