A couple of seemingly unrelated trains of thought have collided in my head. I have read with interest various discussions about private security firms and private courts in a minimal state. Also, I recently had a discussion about the New Testament injunction that Christians resolve their disputes among one another out of court. What is to stop Christians and anti-statists and others from doing this now even before the Kingdom of God or the Free Society is established?
As a professional in conflict management and alternate dispute resolution, I am well aware of the availability of mediation and arbitration services and private courts, especially in commercial disputes. I have been involved in a number of arbitrations under the rules of the AAA, and I am a trained mediator with experience in divorce, custody, commercial and other disputes. The trouble with these systems is that they replicate on a more informal basis or mirror the courts. Arbitrators and private courts are often simply substitutes who apply the same law as the government courts. Mediators typically guide matters to resolution based on what a government court might be expected to do. Accordingly, if you find government courts and the law they apply objectionable as a Christian or an anti-statist, the usual alternatives are subject to many of the same objections. Sure, recourse to them is voluntary, but what does this avail you if the result is the same and the same unjust laws are applied?
What if the arbitrators, mediators and private judges were subject to alternative laws as well? Christians might appear before a court governed by Christian principles. Anti-statists of various stripes could appear before courts following natural law or the common law or some other entirely different law acceptable to and chosen by the disputants. All that is needed is for these systems of law to be memorialized and made available and for circumspect individuals to take on the role of judge. Most states will enforce arbitration awards, if that becomes necessary.
Of course, all the disputants would have to accept the law and the court, and the state would still exercise power over its subjects. This private law system would permit conscientous people to resolve disputes with like minded folks without having to subject themselves to the state's machinery and without recognizing the legitimacy of the state. This system would compete with the state and might become increasingly popular. If it becomes popular enough, the government courts may decline in relevance.
Perhaps I am naive about this, and the state will simply interfere to protect its monopoly before allowing itself to wither away. Resistance may well be futile. But creating and maintaining such competitive institutions outside of the state and using them to the exclusion of the state would permit us to act upon and live our anti-state ideology and show the world what a free society might look like.
UPDATE: Iceberg, in the comments, informs that such a private court system exists in at least one community of the faithful.
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2 comments:
Have you ever heard of a Bet Din? It is a court system run according to the Jewish Halachic law, and all disputants sign waivers pre-trial to accept the courts decision.
The rules and procedures which govern the court and how evidence and testimony are accepted is markedly different than in the statist legal system.
There are lawyers, who are called "To'anim" (literally "claimants") whose job it is to best argue the position of either the defendent or the plaintiff. They are usually rabbis and scholars who have great knowledge and understanding of the talmud, and many of the codified Jewish halachic texts.
The one major thing that differentiates them from lawyers is that lawyers do not search for the truth of the claim, but rather to help their client win regardless of whether they are in the ethical right or wrong.
A To'an (the singular form of "To'anim") will never knowingly lie or coverup for his client, if you could call the plaintiff or defendant that term.
The To'an really works for the court and seeks to get the most accurate retelling of the events from the disputants, in order to help the court make the right decision according to halacha.
The one major shortcoming though is that the jewish halachic code isn't entirely universally agreed upon. There will be some courts which will follow teachings from different sages, while other courts might rule differently because of other sages opinions that they follow.
In any case, many jewish communities have their own bet din or two, which serve the purpose for any disputes which arise in their "jurisdiction".
Thanks, iceberg, that is just the sort of thing I am talking about. There should be some way for the various private law systems to resolve conflicts of laws since in many instances the differences may not be relevant to the issues in the case at hand.
I began thinking about this issue in divorce mediation work when it occurred to me that many couples wanted a kind of justice to which the courts were indifferent, if not hostile. I would try to validate the couple's choices but would run into resistance from their lawyers when it came time to work up a memorandum of agreement.
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