One of the common questions raised about a libertarian society is how a criminal justice system would work in the absence of a state. While questions like these are impossible to answer definitively, as unpredictable market forces would produce the best answer, we can make speculations. We do this knowing that our speculations are inferior to the final product, as they always are where freedom prevails. I am reminded that in the 1990s, people were speculating about how much of an impact the World Wide Web would have on the economy, or even if it could be used to earn revenues. Paul Krugman, the Nobel Prize winning economist, predicted that it would have about as much of an impact on the economy as the fax machine had. We can speculate, but the market will provide the best answers. Our speculation may be as faulty as Krugman’s.
I also want to stress that my speculation would not produce a perfect system. That being said, producing the perfect system need not be the goal. The goal would be that it would work more efficiently and more justly than our current system. Since our current criminal justice system is neither effective nor just, the burden of proof I have given myself is rather low.
Let us first examine what happens currently when a crime is committed. Ideally, following the crime, the guilty party is put on trial, found guilty, and sentenced to a term of imprisonment. Upon release, the criminal claims that he paid his debt to society. However, his debt was not to society. His debt was to a victim. While he sat in prison, his victim worked a job, and paid taxes to house, clothe, feed, and protect him while he was in prison. This is hardly “paying a debt.”
In a stateless society, there would likely be courts. These courts would be paid through fees of those who use the courts. If a person is accused of a crime, the accuser would take that person to a court agreed upon by both parties, where a determination of guilt or innocence would be provided, and a means of compensation imposed.
Let us now examine each aspect of this system, and see how it compares to the current system. It could be suggested that courts that are working for profit would behave less justly than courts that are working for a political system. This claim seems baseless. It appears obvious that politicians are not likely to be the standard-bearers of honesty, integrity, and justice. They have no incentive to do so. If they are in a district where the population wants a judge who is “tough on crime,” then they have every incentive to convict, regardless of evidence. In a stateless society, there would be many court systems, competing with each other. If one system seems too harsh on criminals, the person accused would never agree to use that court. If one system seems too lenient on criminals, the victim would never agree to use that court. Therefore, the profit motive would drive courts to just and fair decisions.
Next, we will assume that the parties went to a court, and the criminal was found guilty. In a free society, the criminal would be required to compensate the victim. In most cases, this could be done through payments through the ordinary means of employment compensation. In more extreme cases, he might need to go to a facility where criminals work off their debt, not to society, but to their victim. Again, there would be competition between facilities. If one facility abuses the inmates, or does not compensate them fairly, a court system would be unlikely to sentence a criminal to that system, because, once again, the court system has a profit incentive to behave fairly and justly.
Now, you may be thinking to yourself that this system would only work if the accused criminal shows up to court. What happens if he does not? Are you going to kidnap him, and take him there by force? That would not be any different from our current system, and it could be an option in a free society. However, there are other ways that a free society could compel a person to show up for their court case. One way could be that people could have “reliability ratings.” Think about Yelp reviews, but instead of reviewing a product or service, people are reviewed.. Employers, clubs, organizations, and courts could rate you, and not showing up for a court appointment could give you a low rating, which would negatively affect your employability. Individuals could also carry reliability insurance. Think of an insurance company that backs a person saying, “We vouch for this person’s reliability.” In the event that you do not show up, your premiums would increase. Employers would not hire people unless they carry reliability insurance. Or, as mentioned previously, we could do it the way we currently do it, and kidnap the person who does not show up. However, in the present situation, where if you are kidnapped by the state, and there is found to be little justification for your kidnapping, your kidnappers face few if any repercussions. In a free society, if you are kidnapped and there are little grounds for your kidnapping, you would be able to be compensated by the criminals responsible.
Currently, everyone in society is responsible for maintaining the court system, and it is not based on how frequently it is utilized. Like anything that is “free,” this distorts the supply and demand. Cases that could be decided through a conversation over coffee are taken to court. Disputes that could be brought before a church are brought before a judge. This is unfortunate in our current situation. Since in a free society, courts would be ran with user fees, rather than taxes, people would be encouraged to settle their disputes through communal relationships, rather than through courts. This will help to build a sense of community, and discourage senseless litigation.
Again, while a stateless criminal justice system would not be perfect, it would be an improvement over our present system, which encourages criminal behavior, and discourages justice.