Would You Like Fries With Your Arbitration?

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In a totally free society, there would be no state courts. No one would impose services on you at gunpoint (unless they want to get hurt). Rather, libertarian anarchists often suggest alternatives like the privatization of courts and other arbitration services. It might seem far-fetched, but it need not be so.

What passes for justice today is a scam. There are two primary reasons for this. The first is that there is no market for legal services: the state imposes a one-size-fits all judicial system where everyone is taxed whether they use it or not. Furthermore, given that government justice is subject to the pitfalls of socialist calculation, the costs are arbitrary and almost certainly too high. The second part of the scam consists in the idea of justice. Rothbard was correct when he criticized government justice (could that be more of a contradiction!?):

“What happens nowadays is the following absurdity: A steals $15,000 from B. The government tracks down, tries, and convicts A, all at the expense of B, as one of the numerous taxpayers victimized in this process. Then, the government, instead of forcing A to repay B or to work at forced labor until that debt is paid, forces B, the victim, to pay taxes to support the criminal in prison for ten or twenty years’ time. Where in the world is the justice here? The victim not only loses his money, but pays more money besides for the dubious thrill of catching, convicting, and then supporting the criminal; and the criminal is still enslaved, but not to the good purpose of recompensing his victim.”

Indeed, if I have not been involved in a crime, I should not have to pay for someone else’s defense (in the form of public defendants and taxation to support the system), nor should I pay for someone else’s prosecution and conviction (district attorney and public prisons). What is a possible libertarian answer? The privatization of courts. There is quite a lot of literature on this already so I’m not going to dwell on the details. My point is to elucidate on some of the possibilities. With that objective in mind, I shall compare market arbitration services with restaurants.

I personally think that a good number of people would have judicial services included in their insurance coverage. This, however, might not be the case for everyone. But regardless of the specifics, I argue that there would still be a multitude of freelance and independent agencies whose purpose is contract dispute resolution. I will not address the issue of how contracts would be enforced; that is beyond the scope of this piece. What matters here is that such services are likely to exist and that the market would supply a range of options. Just as today we can get a quick burger and fries for a few dollars or a top-notch dinner at a fine eating establishment for one hundred times as much, so would the gamut run along the court industry.

Let’s start with an easy example. McCourt is a franchise of quickie arbitration. You and the defendant can come in (or opt for the drive-through) and in a few minutes receive a decision. It will be inexpensive and might leave you with a sour stomach. But the reason it was chosen was probably because of the nature of the conflict: it was one where the value at stake was probably small relative to the arbitration fee and lost time, and the parties felt that they could have lived with either outcome. McCourt would attract people with low incomes, people who want quick and easy resolutions, and those whose claims are not very valuable to them. In McCourt, the person judging the case could be anyone from a 16-year-old kid who read a pamphlet on property to a blind 90-year-old man who knows a thing or two about it. Either way, the outcome of the arbitration will be, subject to the agreement between the parties, binding. If A and B are fighting over a used lawnmower, this could be a viable choice.

Next up we have the local diner. It is filled with good customer service, lots of smiles, and ambiance. Likewise, the quality of judicial services offered in such a place would be a vast improvement over that of the national franchise. Quite possibly, it would offer additional services. It would make a few calls, gather circumstantial details and examine evidence. It might also charge more of course. A business with the name Judges-R-Us would attract people who have more at stake. They might even mail you coupons: “2 for 1 judicial services. Let us be your judge of choice! 50% off all services this month!”

Then there would be the fine dining restaurant, where only the best are at your service. This kind of judicial business would cater not necessarily only to the rich, but to anyone who desired a full-featured judicial proceeding. The judge might have quite a respectable legacy behind him, with thousands of cases going back decades. In its objective to please, “Fine Arbitration & Settlements” employs people who are able to deliver superior service. The clients can expect comprehensive discovery and deliberation proceedings, proper attention to details, a predictable set of rules on the acquisition of evidence, and many other perks to ensure that the customers are satisfied. A reputation for fairness, consistency and transparency must be the norm. Important cases, such as those involving murder, high profile theft or fraud, or pollution would be tried there.

All this assumes a market-based order. There are other options. In areas where communities would not want to see a market-driven judicial system, it is possible that other arbitration services would become available. Maybe groups would simply acknowledge someone to be their chief judge as it has been done with many societies in the past. But at any rate, it would be up to their members, as part of their heritage and desires, to establish some sort of authority that would help solve conflicts. Regardless of how this is achieved internally, it would almost without a doubt result in better outcomes.

There is also no reason why there would be “courtrooms” as we see them today. Judicial and arbitration services could run out of a home, apartment or office building dedicated to those purposes. Businesses have it in their best interest to make their environment pleasing to their clients. It’s not impossible to imagine private judicial agencies to provide amenities ranging from free snacks and plush waiting rooms to things like online case filing and, like shipping companies, priority or next-day services for a higher charge. The possibilities are endless.

Freedom becomes a reality when each person is the ultimate decision maker over his body and property. As a sovereign proprietor, the individual is in the position to delegate any legitimate authority that he possesses. That includes the right to ask someone else to mediate a contract. A voluntary system would be legitimate and also more efficient and just. It’s time to denounce government justice as criminal and the state as a parasite.

Manuel Lora [send him mail] is a freelance TV producer and multimedia specialist in New Orleans.

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