Anarcho-capitalists believe that all government services can be provided satisfactorily and more efficiently by the free market, including law enforcement. In their ideal society, judicial services would be offered by private agencies just like any other good or service. This must be the case if all taxation is inherently immoral. Murray Rothbard explains:
“Defense in the free society…would therefore have to be supplied by people or firms who (a) gained their revenue voluntarily rather than by coercion and (b) did not—as the State does—arrogate to themselves a compulsory monopoly of police or judicial protection. Only such libertarian provision of defense service would be consonant with a free market and a free society. Thus, defense firms would have to be as freely competitive and as noncoercive against noninvaders as are all other suppliers of goods and services on the free market.” – Man, Economy and State, chapter 13
What this means is that within any given territory, multiple judicial agencies would open up and compete for your business. Different agencies would provide different services based on different standards of law. Hypothetically, you could have a Muslim agency that operates under sharia law and a Christian agency that operates under biblical law. You simply pick which company you prefer. When two people are in conflict, their respective agencies will deliberate until they agree on the appropriate conviction and punishment. Rothbard admits that this could not work unless all agencies followed the non-aggression principle:
“It seems to me that in order to be considered legitimate, any court would have to follow the basic libertarian law code of the inviolate right of person and property. For otherwise, courts might legally subscribe to a code which sanctions such aggression in various cases, and which to that extent would violate the definition of anarchism and introduce, if not the state, then a strong element of statishness or legalized aggression into the society.” – Society Without a State
This is possibly where the accusation against anarchy as being “utopian” originates. History is full of civil rulers committing acts of aggression against their subjects – why will that change if we abolish the state? Well, it won’t, according to anarchists. But since no institution would have a monopoly on justice, consumers have the option of taking their business elsewhere. If an agency becomes tyrannical it will simply go bankrupt as consumers switch to the competitor. In our current situation, the state has a monopoly on justice and we have no option but to submit to its tyranny. Thus, anarchists say that privatized justice is the best option for maintaining a free and peaceful society. While attractive on some levels, I believe this system fails to achieve its goal.
First, it has been previously noted that Rothbard’s NAP is unproven and ultimately unworkable. Even if all agencies agreed to follow it, some will define it more broad than others. Natural law doesn’t dictate standards of crime and punishment. Imagine that a husband belongs to agency X while his wife belongs to agency Y. Agency X says that abortion is murder but agency Y says it is not. In the case of an abortion, how will they come to a mutual decision? If agency X thinks that the appropriate punishment for murder is death, why would agency Y ever agree to let their client be killed for something they don’t think is a crime? Even a private court of appeals – as a final arbiter – would not be obligated to side with the demands of either agency. Privatized justice means relative justice; relative justice means no real justice at all. At some point, the agencies will have to compromise with neither receiving the outcome they believe to be morally correct.
Secondly, God says he wants one law for citizens and sojourners in any given territory (Lev. 24:22). This certainly sounds like a monopoly, although it coincides with the biblical principle of decentralization. A biblical system would have multiple jurisdictions, each with civil rulers who apply God’s word to judicial cases. God’s law isn’t magic, however, and we’d still run the risk of magistrates abusing their authority. Yet, holding one tyrannical institution accountable is much easier than holding multiple tyrannical institutions accountable. The best option for maintaining a free and peaceful society is not to privatize justice but to Christianize justice. What does that look like, exactly? The following guidelines are a good starting point.
1) God distinguishes between sins and crimes. If a command is given without an attached punishment, then it does not constitute as a civil law. It’s a moral law that you should obey but not a law that civil rulers are to regulate. For example, covetousness is a sin of the heart whereas theft is an act of aggression against another person. The civil government cannot punish people for coveting but they can punish theft.
2) Punishment for crime is based on restitution (not imprisonment) and God tells us what the appropriate punishments are. A thief is to pay back double (Ex. 22:7). This restores the victim to a higher status than before and gives the criminal the chance to rehabilitate himself to an ethical lifestyle. Murderers should receive the death penalty since the punishment must fit the crime (Deut. 19:21). Sexual crimes such as rape are also deserving of death (Deut. 22:25-27). Tax-funded prisons actually punish the victim, not the criminal. The criminal is given shelter, food, entertainment and education at the financial expense of the victim. We are supposed to pity the offended, not the offender.
3) Restitution can only be enforced if the victim presses charges. Just as God has the authority to punish or have mercy, so do we. If a crime punishable by death was committed, the victim is allowed to demand death, a lesser penalty, or nothing at all. Hosea 3:1-3 is an example where the victim of a crime punishable by death does not press charges. In Matthew 1:19 when Joseph thinks Mary has committed a crime punishable by death, he decides to simply divorce her, yet he is called “just.” The option to press charges or extend mercy belongs to the victim alone. The only crime that has to be punished is murder since the victim is no longer living to bring charges. If there is no way to restore the victim, the criminal cannot be restored either (Deut. 19:10-13).
4) If one decides to press charges, there must be at least two witnesses before someone can be convicted of a crime (Deut. 17:6). If you turn out to be a false accuser, then you receive the punishment you sought to impose on the innocent person (Deut. 19:16-19). This is a perfect safeguard from punishing someone unjustly. God’s principle of restitution is the best system for protection, freedom and peace.
Rothbard and others have spent much time thinking through the implications of a privatized system and how it might work in practice. Many of their insights are fascinating and not to be dismissed easily. But justice cannot be a product of the free market because the free market is based solely on consumer preferences. True justice is based on God’s preferences.