A Condensed Version of: For a New Liberty: The Libertarian Manifesto
by Murray N. Rothbard
Compiled and Edited by Dr. Jimmy T. (Gunny) LaBaume
The Public Sector, III: Police, Law, and the Courts
The Law and the Courts
This legal code would insist on the libertarian principle of non aggression. It would define property rights, set up rules of evidence, and a code of maximum punishment. Then, within this framework, courts would compete and the market would decide whether judges, juries, etc. are the most efficient means for providing judicial services.
Such a law code is indeed possible. Government is no more qualified to develop and apply law than it is to provide any other service. In fact, over the years, the best parts of our legal system were developed exactly this way. For example: the entire law merchant was developed by private merchant courts. It was only much later that government took it over. The same occurred with admiralty law. The shippers themselves took on the task and it was only later that the government appropriated admiralty law into its courts.
Furthermore, “the major body of Anglo-Saxon law, the justly celebrated common law, was developed over the centuries by competing judges applying time-honored principles rather than the shifting decrees of the State.” Judges did not make law (as they do today). Instead, their job was to find the law in accepted common law principles, and then apply that law to specific cases or new conditions. These judges functioned like private arbitrators. There was no arbitrarily imposed “supreme court.” Furthermore, although precedent was honored, it was not automatically considered to be binding.
The imposition of judge’s personal views was kept to a minimum in three ways: 1) they could only make decisions when private citizens brought cases to them; 2) the judge’s decision applied only to that particular case; and 3) decisions always considered the precedents of the centuries.
I the private law area, ancient Roman judges functioned the same way as the English common law courts. Under the concept of the certainty of law, nobody enacted law and nobody could change it by exercise of his individual will. The law was something to be described or discovered. It was not something to be enacted.
In a libertarian society, the people themselves will appoint the judges simply by patronizing the ones with the best reputation for knowing and applying the basic common law principles of the society. In other words, selection of the judiciary would be based on the widespread consent of clients, colleagues, and the public at large.
Rather than tradition, the basic libertarian legal code would be established on the basis of the libertarian principles of nonaggression and reason. We already have a body of common law principles. Therefore, applying reason to correct and amend these principles would be much easier than creating a systematic body of law from scratch.
Ancient Ireland is the most remarkable historical example of a purely state-less society where the courts and the law were libertarian. It survived for about a thousand years until its brutal conquest by England in the 17th Century. Although there was no sign of State-administered justice, this was not a “primitive” society. It was highly complex and the most advanced, scholarly, and civilized in Western Europe for centuries. The basic political unit was the tuath, which was composed of the “freemen” who owned land, professionals, and craftsmen. An annual assembly made policies, declared war (or made peace) on other tuatha, and elected (or deposed) “kings.” No one was bound to a given tuath. Individual members were free to secede and join another tuath. It was simply a group of persons who voluntarily united for socially beneficial purposes. Its territorial dimension was the total of the landed properties of its members. About 80 to 100 of these coexisted throughout Ireland at any given time.
The king primarily functioned as a religious high priest. His function was hereditary as he was elected from within a royal kin-group. But he had strictly limited political functions. He could only conduct negotiations as the agent of the assemblies and in no sense was he sovereign. He could not legislate and, when party to a lawsuit, he had to submit his case to an independent arbiter.
The law itself was based on ancient custom which was passed down through professional jurists called the brehons. These men were selected by parties to disputes based on their reputations for wisdom, knowledge, and integrity. They had no connection whatsoever with individual tuatha or their kings. They were completely private and national in scope. There were no other judges of any kind in ancient Ireland. There was no monopoly of the brehon jurists. Competing schools of jurisprudence existed and competed for the custom of the Irish people.
Their decisions were enforced through a voluntary system of “insurance” or sureties. Men were linked together by a variety of surety relationships. The brehons themselves were not involved in enforcement. That was in the hands of private individuals linked through sureties. This system applied to all offences, “civil” or “criminal.” Criminals were considered to be “debtors” who owed restitution to their victims. The victim would gather his sureties, proclaim his suit in public and demand that the defendant submit to adjudication. The criminal could send his own sureties to negotiate a settlement or he could agree to submit the dispute to the brehons. If he did neither, he was considered an “outlaw.” As such he could no longer enforce any claim of his own in the courts and was ostracized by the community.
Only the coercive State can, through taxation and conscription, mobilize large amounts of arms and manpower. Therefore, the occasional Irish “wars” were minor brawls compared to the devastation that racked the rest of Europe.
Thus, history supports the theory. It is entirely possible to have efficient and courteous police, competent judges and a socially acceptable body of law—none of which are furnished by a coercive government. Government is no more necessary for providing protective and adjudicative service than it is for anything else.
To be continued
The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.
You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume II: The Economics of Liberty and The Essence of Liberty Volume III: Liberty: A Universal Political Ethic.