Law Without Government. Robert P. Murphy.

So what's interesting, I think, is that actually the case for private defense is a piece of cake. That's really not what trips people up. Really, when people give you all these zingers about "well, what if this happens? What if that happens? You know, what if there's 18 midgets who are armed with broadswords and they jump off of a plane?" What happens is a lot of the time it boils down to really what the issue is—they can't get how private law could work.

And that's really what the stumbling block is, and that admittedly is a much more difficult problem. I think once you see how that system could work, just in terms of having society or the consensus emerging within a group of people to say who is the aggressor here, who's the lawbreaker, or what is the law, and how do we determine who's law-abiding and who's a criminal? That's really the hard part: to say how could you do that without some monopoly agency that arrogates to itself the right to make such pronouncements, and then the rest of us just have to fall in line?

If you don't have a single group vested with that authority to do that, it's a lot more difficult to picture how that could work because everyone just kind of automatically assumes you need to have such a single group with the ability to do that in order to promulgate laws. So, let me just spend a few minutes then talking about this issue: how would private law work?

Well, I think the conceptual thing is to separate out the enforcement of it from the decision-making, the rendering of decisions. There's a clue when you say, "What does a judge do?" A judge gives his or her opinion on something, and I take that word literally. I really think that you should consider it a literal thing that what the judge is saying is, "In my opinion, looking at my knowledge of precedent, looking at my knowledge of the facts of this case and my intuitive sense of justice or whatever, I think the correct ruling in this case would be such and such." That's my opinion.

And that's really all that a private judicial system is doing—it’s people who are experts in various types of cases. When disputes arise between people and they can't solve it on their own, they take that dispute to a third party. How do they pick that person? People can't decide, you know, there's an argument, and they then say, "Well, we can't work this out. Let's take it to somebody." The person they're going to take it to is going to have a reputation for fairness and objectivity.

That's, I think, the way 99% of judicial issues would be resolved in a free society: to go to this particular person that they might call a judge. Nowadays we would think, "Oh, that's arbitration," and that's exactly what happens on arbitration. Both people—if someone's going through a divorce or some business, and an employee—the business fires the employee, and the employee says, "You owe me wages that you didn't pay me," and the business says, "No, we don't," and they can't work it out. They don't want to take it to a government court because it'll just take forever, and so they can both agree beforehand, "Alright, let's go to some arbitrator and just deal with this because we need to move on."

You know, this is costly for both of us to have this up in the air. We're not going to settle it by having a duel because that's crazy—it's bad for business, and also you might get shot. So, what we're going to do instead is take it to an arbitrator, and it’s not that, "Oh, well, then we’re in trouble; everyone knows that the arbitrators always rule in favor of the business." Well, no, that's not true because if it were true, then the employees would never agree to that.

So, there is a market for an actually objectively fair arbitration process. Let me just give you some quick analogies because a lot of people think that, "No, no, that's impossible; what you're describing can exist." Who determines what words mean? Who defines words?

People might say, you know, a very superficial answer would be to say, "Oh, the people—the publishers of dictionaries—they define what words are." But no, they don't. If Webster's came out with a new edition and said that the word "up" means moving towards the floor, we wouldn't just all walk around saying, "Oh, I guess I was mistaken." No, we would say, "What are they doing? They put the wrong definition in."

If they did that a lot and we kept finding those mistakes, people would stop buying from Webster's, and they'd go out of business. Right? So what the publishers of dictionaries do is codify the definitions that prevail in the community. They don't get to invent what the words mean; they just codify it.

And then you could say, "Well, wait a minute, but then what's the point of having a dictionary in the first place if they're just writing down what we already know?" That's silly! No, dictionaries serve a very useful function because a lot of us don't know exactly what words mean, or we think we know what they mean, and we use it in a certain way. Then you look it up and say, "Oh my gosh! I've been using this word wrong for 20 years!"

Right? So the point is, we collectively as English speakers know what those words mean. The community somehow knows, but yet not everyone is an expert on it. There are some people that's what they do—they specialize in knowing the definitions of English words, and they are the ones who write dictionaries.

It's not that you can just say whatever you want because, hey, there’s no such thing as real language or there are no rules of language. No, there are rules. But there's also a sense in which we decide what they are. The English we speak now is different from the time when Shakespeare wrote, so the definitions of words and the grammar have evolved over time.

So there is a sense in which we decide what the words are and what the rules are, but in another sense, anyone who tries to deviate from that is an oddball and is violating the rules of grammar. Okay, so I think that's a good analogy in some respects for how private law works in general—that there would be people codifying certain principles.

Right? So there would be a role for people writing theoretical books on, "This is the way the law ought to look and adjust society," so you know Rothbard could have a natural law approach, utilitarians might put their views out, other people could put different things. Then the judges would render opinions when cases are brought before them, perhaps drawing on those various strands that they think are relevant.

And then the market would determine which judges got more cases brought to them, and they also would probably rely a lot on precedent and case law because clients would want to have some inkling before they went into the case of how this guy was going to rule.

Right? If the company is having the dispute with the employee and saying, "We think we paid you what we owe you," and the employee says, "No, because you said you were going to give me a bonus and you didn't," they wouldn't want to go to an arbitrator and then get in there and he said, "Okay, the way we're going to solve this is to see who can chug this beer faster."

They would be stunned and say, "That's not the way you ruled on previous cases. We thought you were going to rule on this. You know?" So, the point is you would want predictability going into it.

So it would be in the judge's interest to have standards—to say things like, "These are the rules of evidence; you know, you can't use hearsay, or maybe you can use hearsay with these exceptions." So a lot of the stuff that we now know, if you go into law, the things that seem natural and just to us, there would still be a role for that.

It's just the way it would manifest itself is the judge would have to provide a service to attract people so that both sides would be willing to submit to the judge beforehand going into it.

Of course, the question is: alright, that's fine for like civil disagreements, but what about actual crimes? How would that work? And so here, I'll start bringing in now the issue of actual enforcement of the law too.

So, somebody—let's say I come home and I see some guy breaking into my house, and he runs out with the TV. So, I get—he gets away before I can stop him, and I see him running, and I'm pretty sure it's the guy from down the street. I can't stand that guy!

And I just know he's a criminal, right? So I'm pretty sure he's the guy that took my TV, and so I go down to his house the next day and I accuse him of it. I say, "Give me my TV back!" I can look in there and see it's a TV that looks just like mine, and he says, "You're nuts! I've had this for three months!" Whatever. So we can't resolve it.

Now, I could let's say I am absolutely certain that that's my TV. You might say, especially from a Rothbardian point of view, that I’m perfectly morally justified in just marching in and taking that TV. And if this guy is a tough guy—like he’s got a pit bull or something—you might even go further and say I’m justified in calling up a bunch of buddies to come shoot the dog and take the television set.

You know, bind the guy, or whatever—don't kill him, but you know, do what I need to do to get my TV. Whatever your views on that issue are, that's irrelevant because the community is not going to like me doing that. They're not going to like people just unilaterally saying, "This guy's a criminal; he took my TV; I'm dead certain," and so I'm going to get a bunch of my buddies and break down his door and shoot his dog and take the television set.

Right? That's just not a neighborly thing to do. My employer is not going to like that. They're going to say, "Yeah, we heard that you’re breaking down. What are you doing?" You know? So you get the point that it’s just not smart to do that.

So rather than do that, I'm going to want to have a professional agency come in—people that are trained. They might have guys that are burly, with bullet-proof stuff on, and you know, flak jackets and things. And like maybe the plastic stuff that the police use with the riots, you know, so that they can be—and they would have non-lethal means, like they would have nets and foam guns and stuff like that.

They wouldn't come in with guns blazing to get a TV, because that would be reckless. There would be no reason to escalate it to that level. The private agents, the enforcement agencies, again, they wouldn’t just take my word for it. They couldn't just say, "Yep, whoever comes in here is willing to plunk down the money, we go and get TVs for you and break down doors and give them to you."

Right? That'd be crazy! Because they—how do they know whether that really is the TV or the right person's TV? So those agencies would say, "Before we act on your behalf, you have to bring us an opinion from a reputable judge saying you’re ruling in your favor."

So what I have to do in this case, I say to my neighbor, "Hey, that's my TV!" He said, "No, it's not!" And I said, "Well, then prove it! Show me the receipt, if you said you bought it three months ago." He said, "I don't have it!" I said, "Well, what store did you buy it from? I'll go ask them if it's in their records." And he said, "No, I paid cash from some guy in the street."

Sorry, he's just making up all these convenient excuses! And then I can say, "Alright, I'm telling all my neighbors this guy stole my TV!" Oh really? And so I challenge him and say, "Look, here I come up with a list of a bunch of reputable arbitrators who specialize in burglary and so forth. Here you go! Here’s a list of 20 people within 15 minutes of driving. I'm willing to take our case to any one of them, and I will agree with whatever that arbitrator decides because I think I have a strong case against you."

Alright? So I do that, and then if he just says, "No, I don’t—these arbitrators are all a bunch of scoundrels! Let’s use my brother-in-law. He’s fair!" Right? Take it or leave it. If he does, you know, if he’s acting like that, my neighbors are going to start to say, "Okay, Bob is in the right; this guy stole his TV."

And maybe, you know, I’ll say, "Well, since you're being ridiculous, I'm going to go to one of these professional arbitrators who hears 30 cases like this a week, and you know there’s never been an issue of them taking bribes or anything. And they've given rulings and they always explain why they ruled the way they did, you know? And the ruling—no other legal theorist or scholar has ever thought these people did anything outrageous."

You know, their colleagues think, "Oh, these guys or women are good judges." So, I'm going to just pick one of them since you're not being helpful here, and I'm going to take my case to them and we're going to try it. And if you don't show up, tough for you!

And so then the judge makes the ruling and he says, "Yep, I agree; this guy stole your TV!" Okay? So now I go back to the enforcement agency, you know, the company that hires a bunch of goons to come in and I show them that, "Oh, Judge HOA has ruled in favor of this." Like, I show him and, you know, I’ve given notice to the other guy saying, "There’s now this pending ruling where a judge agrees you took my TV. Do you want to dispute that?" And he says, "No, that guy is crazy, blah blah blah."

Alright, so at that point now, I go to that security agency and say, "Look, I don’t want to go on this guy’s house by myself. I need, you know, calling the big guns," and they say, "Okay, sure." And then he comes in, alright? And he comes and gets the TV.

Alright? So you get the point though that what I’m getting at here is that I think you need to disentangle the issue of how it's decided that there has been a crime or not.

And then, once that's an issue and there's no doubt—so the community is not going to think that that guy is a criminal. They're not going to look at him going into a house and coming out with a TV and saying, "Oh my gosh, he's a criminal!" Because for one thing, he’s going to be doing it in broad daylight.

He's going to have a big van with his number; you know? "Call us if some looter takes your stuff! We hate looters!" And he's going to be very professional. Like I said, he's going to have a lot of body armor and stuff. And the crucial thing is, he's not going to kill the guy; he's probably not even going to hurt him like long.

He may incapacitate him, like put a net on him or some of those things, and it’d be much better if they go in and incapacitate the—you know, whether like maybe they knock out a window and shoot in tear gas and make the guy leave the house first.

And, of course, they would have checked before to make sure there's not like an infant sleeping or something. You know, the point is they would be much more careful because there’s competition. Because they kept doing stuff like that and, you know, "Oh we got to get tough on these criminals!" and "I feared for my life!"

No, well, okay, maybe he would be exonerated, but he wouldn't get any more business. The stuff we associate with police brutality now, it is just shocking. I don't know if you guys look at this stuff, but no matter how much a police officer overreacts to something—like whether it's a 13-year-old in a school who mouths off and he like just beats the heck out of the kid and tackles him and breaks his nose—people always say in the comments with those news articles stuff like, "Well, you know, these police are putting their lives on the line every day."

And I mean it— they could do anything, literally anything, and there would be people who just rush to their defense. That happens because it's a monopoly! People think they have to choose between having law enforcement or not, and then, well, if we have to have it, then yeah, sometimes people, they overreact, and whatever, but that's just the cost of living in a society of laws.

And no, it's not! That's the cost of living in a society with one group that has a monopoly on law enforcement!