Private Law and Anarchism: Is Privatization a Solution to the State's Monopolies on Legal Services? (Incomplete)

Table of Contents

1. The Problem: Our Rights to Challenge the State Are Being Ignored

     1a. Settling Out of Court

     1b. Jury Duty and Jury Nullification

     1c. Pro Se Defense and "Never Take a Plea"

     1d. Using Jury Nullification and Self-Representation to Send a Message

     1e. The Rights to Sue, and to Demand a Trial by Jury

     1f. Immunity From Prosecution Interferes with the Right to Sue
     1g. Forced Lawsuits
2. The Solution: Providing Alternatives to the State

     2a. Purpose and Explanation of This Article

     2b. Privatized Firms: Not So Private After All

     2c. Purpose of the State in Regards to Resolving Disputes

     2d. The Purpose of Government in Regard to Monopolies

     2e. Holding the State Accountable Through Private Alternatives

     2f. Where Law Comes From: A New Way of Thinking

     2g. Representation Diminishes the Rights of Victims, the Accused, and Juries
     2h. No Victim, No Crime

     2i. Where Standards Would Come From in a Stateless Society

     2j. A Stateless Legal Order

     2k. Why a Stateless Society Would Lack Victimless Crime Laws, Criminal Law, and Legislation

     2l. Preventing Chaos and Amorality in a Stateless Society Without Using Violence

     2m. Where the List of 18 Legal Services Comes From

     2n. What the State Monopolizes Besides Legal Services

     2o. The State's Monopolies on Land, Permits, and Legal Forms

     2p. What Happens When the Government Does Too Many Things

3. List of 18 State-Monopolized Legal Services

4. Alternatives to Those State Monopolies

5. Resources

Content

1. The Problem: Our Rights to Challenge the State Are Being Ignored

1a. Settling Out of Court

     It is often said in the legal world that about ninety percent of lawsuits are settled out of court. But could you imagine what our society would be like, if one hundred percent of lawsuits were settled out of court? Can you imagine a society in which neither criminal law, legislation written by politicians, nor laws against victimless crimes, exist in the first place?

     This may seem like an odd, even totally alien idea. But among libertarians, these questions are nothing new, and perfectly apt.

1b. Jury Duty and Jury Nullification

     Over the last several decades, the libertarian movement in the United States has seen a rise in level of public interest in, and enthusiasm for, taking jury duty, and agreeing to serve in juries. This represents a rejection of tradition, because many Americans consider jury duty a hassle and an inconvenience.

     But more Americans, especially Libertarians, are taking jury duty, out of a desire to attempt to practice jury nullification. Jury nullification is a process through which jurors who believe that the relevant law in a case is not a just law to begin with, decide to enter a “not guilty” verdict - even if the accused person is obviously guilty – in order to render the law effectively null-and-void, because juries have set the precedent that courts will refuse to enforce the unjust law.

     As we might expect, many judges do not like the fact that juries have the ultimate say in regards to deciding the facts of the case, and the innocence or guilt of the accused, as well as deciding whether the law is appropriate and just and should be applied and enforced in the first place. (Note: this does not apply in civil cases, nor does it apply in cases in which state laws were violated but federal laws were not. Also: juries' decisions can be invalidated, if they can be shown to have violated the common law by having a bias.

     Of course, defense attorneys and prosecutors hope to influence the jury one way or another, and frankly, that's the whole point of it. But the one person who is absolutely not allowed to be biased is the judge. So if the judge in your case is biased towards the prosecutor or the defense, the common law has been violated, because a fair trial is now impossible. Two ways that judges can influence juries' decisions unduly, are A) issuing too many jury instructions, and B) letting attorneys dismiss potential jurors without cause, or with causes that many ordinary people have a hard time accepting as prudent.

  

1c. Pro Se Defense and "Never Take a Plea"

     In addition to more people taking jury duty, more people are rejecting plea deals when charged with crimes, preferring instead to insist upon taking their case to trial, and defending themselves in court. This is called a pro se defense (which, word for word, is Latin for “for oneself”).

     The slogan “Never Take a Plea” and the renewed popularity of jury nullification, have awakened libertarians to the reality that the Bill of Rights recognizes our right to defend ourselves in court, and that we do not have to stand idly by while public defenders and appointed prosecutors (both of whom receive taxpayer money) resolve our disputes on our behalf.

     "Never Take a Plea" refers to plea bargain deals, in which defense attorneys urge the accused to agree to plead guilty or no contest to the charges, in exchange for a reduced sentence. Also, in lieu of taking the case to trial. In these deals, the accused usually loses-out on the opportunity to know what all of his options were. Fortunately, however, it's possible to sue your attorney for misrepresentation. And that's one way we can make sure that defense attorneys are challenged, aside from just prosecutors, judges, and elected officials.

     Challenging all of these people's authority; the authority of every single agent licensed by the state to work in the legal field - especially when it's exclusive and absolute - is essential to challenging each and every one of the state's monopolies in the provision of legal services.

1d. Using Jury Nullification and Self-Representation to Send a Message

     As you can imagine, if Libertarians could, they would use jury nullification to invalidate all kinds of legislation which they feel is unjust.

     These include laws prohibiting or restricting – or even, for some radical libertarians, so much as regulating, taxing, or requiring a license or payment in U.S. currency for – activities such as the sale, use, and possession of drugs and weapons; and non-coerced sex work. Additionally, Libertarians do not believe that evasion of taxes on labor and capital is wrong, nor are most or all other requirements to associate with the state in any manner. Many libertarians would “boycott” the state, if such a thing were, or is, possible.

     The realization and understanding of these ideas, coupled with renewed interest in common-law courts and citizen militias, could potentially revolutionize the way that libertarians and other political radicals think about: 1) what we need the government to do, 2) whether there's anything we can't do without the government, and 3) whether we need the government in the first place.

     While I'm on the topic of jury nullification, I might as well address the issue of whether I consider jury nullification to be a form of judicial activism.

     Through no outside influence, the thought occurred to me that using jury nullification to send a message could arguably be considered an act of political activism. Since jury nullification pertains to and affects criminal law, and thus affects public law but not private law, it could be criticized as an intrusion upon law that affects all of us.

     Maybe it could even be co-opted some day in order to normalize corrupt and fraudulent behavior so as to let criminals get off Scot-free. These possibilities should certainly raise concerns for those who advocate jury nullification. But for now, it seems that jury nullification has not yet grown popular enough to be co-opted by any perverse interest, much less used by enough people to cause sweeping change and mass repeal of laws against victimless behaviors. And that is unfortunate.

     But on the positive side, it does help my argument that jury nullification is not judicial activism. Both because it has not (at least not yet) been co-opted for political activism; and also because the word "judicial" refers to judges, and to the courts in general, more than it refers to juries in particular. "Jury activism" arguably does not even exist, because the rights of juries have been trod on so much by judges and prosecutors, that they can barely question whether the judge's instructions are appropriate, much less collude in order to decline to prosecute due to overtly political motivations.

     Moreover, the concern that jury nullification is an intrusion upon public law, because it affects us all, is not something to be worried about. As libertarians, we may wish to develop a wide variety of alternatives to state resolution of disputes, and fervently hope that the case in question can be resolved out of state courts, that is not possible. The reason jury nullification exists, is because criminal law and public law exist. Jury nullification exists in order to make criminal law and public law no longer necessary. The state started it, by insisting that a case in which there is no victim and no crime, be resolved in a public state criminal court, in a way that affects all people in the jurisdiction. Jury nullification is what people use for self-defense when they are charged with breaking federal laws that go beyond constitutionally designated strictures, when they would rather resolve their disputes in a more private manner.

     Also, juries have all of the final say (and judges have none) in suits against the government. Additionally, jury nullification is not the same as judicial activism in the sense that it involves an interpretation and misinterpretation of the law, because in jury nullification, the jury does not interpret the law; it simply chooses not to apply it. A jury - and a juror - has every right to refuse to apply the law, and to insist "the law may well be appropriate, but that aside, that particular law does not apply in this case".
     So the idea that "jury activism" exists, much less is a problem, is doubtful. Juries having too much power is nothing to be concerned about; especially not when compared to juries having too little power.

1e. The Rights to Sue, and to Demand a Trial by Jury

     The U.S. Code guarantees all people in the U.S. the right to initiate a lawsuit against anyone, regardless of location or jurisdiction. As I explained in my 2016 speech to the Illinois State Line Rifle Association (while addressing the topic of suing gun manufacturers), in 42 U.S. Code Section 1981, “All persons within the jurisdiction of the United States, shall have the same right in every State and Territory to make and enforce contracts, to sue”, and other things.

     Additionally, the Seventh Amendment to the U.S. Constitution - which concerns civil trials - obligates the federal government to refrain from interfering with suits at common law. The Seventh Amendment reads, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

     Thus, the Seventh Amendment not only recognizes that common law exists, it recognizes that no court in the United States - besides arbitration venues administering original common law jurisdiction, operating according to common law rules - may re-try any fact in the case by a jury. Additionally, it ensures an accused person the right to demand a civil trial by jury in a common law court, without any other court being allowed to interfere.

     That is... as long as 1) the case is a civil matter, not a criminal matter; 2) the case is not worth more than $20; 3) a jury trial would not have been allowed according to English Common Law as of 1791; and 4) they are at suit in either federal courts or in the courts of states which have not adopted amendments to their state constitutions which echo the sentiment of the Seventh Amendment to the U.S. federal Constitution.

     Understanding these facts is essential to understanding that there are places where law is made, which lie physically outside of the government's courts and legally outside of the government's jurisdiction. 

     And those places where law is made, whether somewhat or totally outside of other courts' reach, include, but are not limited to, the following: 1) common law courts, 2) private arbitrators' offices, 3) anywhere people make a contract together, whether binding or non-binding, whether verbal or written, 4) anywhere some neutral person helps two or more people, even mutual friends, make a decision or resolve a conflict, and 5) anywhere people operate (whether temporarily or permanently) according to unanimous agreement and/or democratic consensus.

     Understanding the purpose of constitutional amendments which protect our rights to sue, demand jury trials (in certain circumstances), and be considered for service in juries, also helps us understand that there are at least some areas of law that certain parts of government aren't allowed to get involved in. You can learn more about that topic by researching the intent of the Seventh Amendment, and the topic of equity law (linked below in a video), and the intent of the Eleventh Amendment as well. 

     According to South African attorney Clive Boustred, the Eleventh Amendment is what prohibits judges from being involved in lawsuits brought against the government. In lawsuits against governments, juries must decide, because judges are government employees, and therefore at high risk of being biased in favor of whichever outcome of the case would benefit the government the most (including financial rewards, and prosecution of the accused, whether guilty or not, to the fullest extent of the law, for any and every charge of which he is suspected).

1f. Immunity From Prosecution Interferes with the Right to Sue

     When we understand that we have the right to initiate lawsuits against anybody, to demand trial by jury in federal criminal cases, and to refuse to apply the law when we serve on a jury, then we begin to understand how it is possible to prevent the state from interfering with legal matters.

     One thing the government does to interfere in our right to sue, and hold people who hurt us accountable for their crimes, is to grant privileges and immunities from prosecution. For example, it's impossible to sue the U.S. military, and the U.S. Supreme Court.

     Privileges and immunities from prosecution, also include grants of Limited Liability Corporation (L.L.C.) status, because L.L.C. grants confer a legal privilege upon the members of the company, to be immune from taking individual and personal responsibilities for one's actions. Not just in financial respects, but also in a legal sense. Individual members of the corporation can't be sued by the public, and the taxpayers can't get their money back those companies after years of subsidization to keep them afloat? The public only loses, and the corporation only gains from this "relationship".

     I would have serious doubts about the libertarian credentials of anyone who believes that the government should create monopolies, or that it should exempt monopolies from competition by eliminating and heavily taxing their competitors (whether foreign or domestic), or that the government should use taxpayer money to help protect businesses from lawsuits by the people, alleging crimes by particular employees.

     The government must not create monopolies, nor keep any businesses afloat with other people's money, nor interfere in the economy in any way (except in the unlikely scenario in which representatives of the government were to redress grievances with the public using their own money and labor, instead of money and labor stolen from the public through taxation and conscription into the reserve army of labor).


1g. Forced Lawsuits

     We have a right not to testify against ourselves. For the same reason that the judge may not represent the government in lawsuits against the government, and for the same reason that the attorney of the defendant or plaintiff may have vested interest in the opposite party winning the case, the admission of unintentionally given testimony against ourselves, is a violation of the common law.
     That's because it violates the very balance and logic of the courtroom; that the judge and jury are supposed to be neutral, the defense attorney must represent only the defendant, and the prosecutor must represent... I want to say the victim, and if applicable, the victim's family, but it almost seems silly to say that. The prosecutor obviously represents the state more than he represents the aggrieved person. But if the victim is being represented, then it is through the prosecutor.
     Conveniently, when the public is the alleged victim, this is a lot easier to explain and get away with.

     But even though we have a right not to testify against ourselves, and it's recognized in the Fifth Amendment to the U.S. Constitution, we can still, bizarrely, sue ourselves in court.
     Why we are allowed to sue ourselves in court in the first place, is beyond me. In my opinion, not only should we not be allowed to sue ourselves in court; we should not allow the state to force us, nor our insurance companies, to sue one another, when we do not wish to do so.
     No government can rightfully be described as based on the consent of the governed, if it can force us or our representatives to sue one another in its own courts, without any alternative (like private arbitration) being offered.
     You can read more about people suing themselves, and being forced to sue each other when they don't want to, by visiting the links at the bottom of this article.

PART B: THE SOLUTIONS

2a. Purpose and Explanation of This Article

     The purpose of this article is to enlighten the reader as to which legal services industries the state dominates as a monopoly, as a consequence of the state's having given itself a legal monopoly over the regulation of all things legal and political in general.

     Below, I list eighteen legal services industries, and compare and contrast the way the monopolistic state handles each one, versus how the pragmatic Libertarians who say “privatize everything” want to provide alternatives to the state, versus how anarchists (who more thoroughly reject the state and capitalism) have to say about how to provide alternatives to the state.

     I also entertain the possibility that choosing the most free, most voluntary, and least state affiliated alternatives – that is, the ones proposed by the anarchists – will allow us to live in a completely stateless society. Whether that means that some sort of “voluntary self-governance” or “stateless legal order” (with markets or without them), is also a topic I will address, being that it is central to the issue of whether government should stop existing just because statism is a bad influence on it.

     And, of course, whether all governments are statist is an issue too. I believe that with enough decentralization, polycentrism, and insistence that the consent of the govern be respected, the monopolistic aspects of government can be reduced and destroyed, ushering-in a new era wherein everyone lives under the sort of governance they prefer, without anybody else being expected to obey it or pay for it.

     What follows this introduction is a list of 18 legal services which the state provides; over which the state has either a de facto monopoly, or a de jure monopoly (that is, a near-monopoly for which there are alternatives, but they are not legal or are in a gray area of legality).

     These services are popularly thought to be essential to the nature of government, without which government as we know it would cease to exist. They are also often thought of as services that only the state can provide; many people believe that these services are so important that they can only be provided through government controlling a monopoly in the delivery of certain legal services.

     Below each legal service listed, are “A) State”, “B) Privatized”, and C) Anarchist”. These terms represent:

     A) the public method of state monopolies by which we do things today (favored by statists);

     B) a “private” alternative to the state's monopoly, but which still retains some level of state involvement and/or surplus profit motive (favored by pragmatic political Libertarians); and

     C) alternatives to the state's monopoly on legal services which are completely unaffiliated with the state, or extract surplus value or economic rents, in any way (favored by anarchists, especially followers of Henry George, Josiah Warren, Benjamin Tucker, and Pierre-Joseph Proudhon).

     I have differentiated the libertarian solutions from the anarchist ones, because I believe that pragmatic political Libertarians are not as good as anarchists are at identifying every single example of state interference.

2b. Privatized Firms: Not So Private After All

     I have explained in my previous writing that you cannot call a company “private” if it still receives subsidies, bailouts, taxpayer-funded supports of any kind, and other protections and privileges from the state.

     I also believe that surplus profit, economic rents, and monopolies could not exist without the state's assistance; without the state's unique ability to compel all people within its reach. (Note: Legal scholars, please read "reach" as "jurisdiction". To anarchists, a territorial jurisdiction was once legally termed a "rape" for tax purposes in England.) The state, by taxing people for their labor, compel people, by effect, to work more than they otherwise would, in order to offset the costs imposed upon them by the government's taxes. Unless they can somehow manage to continue to survive while avoiding taxes, they are compelled to relinquish funds which they earned (it's even legally called "earned income", even though it's taxed) to the public purse.

     Only through compulsory labor, and involuntary donation of some of the product of that labor, to the state, makes the firms who hire them (and, at that, according to pre-determined state edicts) capable of sustaining short-term profits. That's because the managers and C.E.O.s of those companies have learned how to extract surplus value; by cooperating with the government in charge, enough to collude with in order to rob the taxpaying worker, while maintaining the illusion that business is more at odds-with the government than it actually is. This creates the illusion that the government has competition, but it doesn't. You can read about that in my 2016 article and infographic "Government is the Source of Corporate Privilege".

     My belief that businesses cannot survive while extracting surplus value from workers without the government's help, motivated my decision to include anarchist solutions to the state's monopoly on the provision of legal services, in addition to libertarian political solutions.

     That is why I mention many times throughout this article that I do not feel that a firm has been fully privatized unless: 1) the state didn't direct the privatization, 2) states must be totally unaffiliated with the firm, and 3) it must not - or at the very least, doesn't necessarily need to - operate on a for-profit basis (and certainly not for anything which could be strictly defined in an economic sense as resulting in the extraction of surplus value).

     In addition to the need to avoid extracting surplus value from the laborer, I think that in a totally free, voluntary, stateless market system, there would be not only free competition, but also free cooperation, as long as that cooperation is voluntary. The result of free competition and cooperation would be that prices would reflect costs (you can learn more about this by looking up the phrase "cost the limit of price", linked below), and unnecessary entry and exit fees would not be charged, nor would any other costs be incurred besides necessary administrative costs.

     I say this because real free markets require internalizing costs, not externalizing them. To allow companies to legally steal other people's money through sweetheart deals whereby the government grants monopoly powers to firms it favors, and to allow people externalize the costs of their bad decisions onto other people through fraud and other methods, is antithetical to the notion that libertarianism and market systems exist because they're supposed to help us become fiscally responsible.

     Additionally, I included anarchist alternatives, because the Libertarian “privatize everything” solutions, in my opinion, tend to, all too often, assume, rather than ensure, that people are participating voluntarily, and assume that everyone wants to get their legal services through a for-profit market-based system. I can assure you: if everybody did, I sure as Hell wouldn't be writing this article, and a whole lot fewer people would have disagreements with the Libertarian Party.

     That's why I believe that the anarchist solutions I have listed, would be more effective than the privatized Libertarian solutions, when it comes to providing now monopolized legal services to the widest possible distribution of people.

     I would also like to draw attention to the difference between active privatization, performed by the state, versus a more passive form of privatization, which occurs when a government bureau is dismantled and abolished, leaving individuals and their communities free to solve - by themselves, without state affiliation or guidance - the problems which that bureau was intended to solve, but didn't. This type of passive privatization has been referred to, by anarchist and libertarian theorists (including Walter Block), as "radical privatization". I support the latter.

2c. Purpose of the State in Regards to Resolving Disputes

     To bring an economic idea into this discussion, libertarians are beginning to realize that the state must not be allowed to become a "resolver of disputes of last resort", for the same reason that it should not be a "lender of last resort" (bailing-out firms that behaved irresponsibly).

     An example of this "resolver of disputes of last resort" is the U.S. Supreme Court. An old saying about the Supreme Court is that "it's not last because it's right, it's right because it's last". This means that the Supreme Court is not last - both in terms of the appeals process, and in the list of three branches of government - because the court always rules perfectly; the court is only thought of as correct, because it decides last. Thus, it is effectively indisputable. That presents a problem, for all those who wish to challenge government and hold it responsible.

     When I say that the state must not be a resolver of disputes of last resort, I mean to say that I am concerned that the state interferes in our lives and our disputes, even when we did not ask it to and do not welcome it. This occurs because the state is worried that we might not be able to resolve our disputes by ourselves, and because the state does not want us to use violence to resolve our disputes. And maybe it's even appropriate for the state to be concerned; after all, unresolved disputes, and trying to fix problems using violence, both lead to conflict.

     However, the state should still refrain from interfering when we wish it not to, because the state's concern for the people's right to live lives free of conflict, is a concern which comes from the state's own self-interest, not from genuine concern for the people. Conflict threatens the state's ability to maintain the illusion that it is under total control everywhere it claims to be. The state wants to avoid letting the people believe too much in their own right to resort to conflict with the state, if it becomes destructive of their liberties and their possessions, and refuses to allow people to seek redress of grievances against their government without letting judges and unjust laws interfere with that process.

     If government does exist, or must exist – and if government really should be any sort of “dispute resolver of last resort”, or lender, or clearinghouse of last resort – then the government should exist in order to provide an alternative where one did not exist before, because there was a monopoly that needed to cease to exist. The government should certainly not exist with the purpose of creating new monopolies where there were none before, in order to eliminate alternatives to the government.

     However, the idea that the state's decisions need to be challenged, should not be construed so as to give courts lacking proper jurisdiction, the free reign to intrude upon, and overturn, the decisions of lower courts, and common law courts, purely for the sake of "providing competition". That's because the right to insist upon a trial by jury in state common law courts, challenges the federal government, or at least counter-balances it, in terms of which level of government tries which type of lawsuit.

2d. The Purpose of Government in Regard to Monopolies

     The purpose of good government in regard to monopolies, is to abolish them. The purpose of statist government, however, is to create them. Because statism is based on monopoly, we cannot trust a government saturated with monopolistic elements to regulate and abolish monopolies; we can only trust a statist government to create and protect such monopolies.

     The wielding of monopolies in the provision of legal services by the state, is thought to prevent rebellions and insurrections; essentially, to prevent terrorist groups and militias from challenging the state's power. Unfortunately, the support of legal services monopolies has only resulted in the introduction of a totally unnecessary and obstructive level of monopoly into our political and legal institutions. The outcome of this has been the state has done too much to prevent people from challenging the state; not just militarily, but legally.

     The purpose of government is not to stop its own people from holding it accountable; one of government's main purposes is to help its own people hold others accountable for their crimes in court, no matter who the accused is. A society in which soldiers cannot sue the military, the police cannot be held responsible for failing to protect ordinary people, the people cannot sue the Supreme Court, and elected officials cannot be charged with felonies, is not a just society. Nor is it one in which we can hold the state responsible for its crimes.

     It is a serious problem if the state cannot be held accountable to the people. It presents political problems, such as a lack of regional autonomy over certain issues which arguably have nothing to do with the central government; and it also presents financial problems, such as the high price of government services which results from the lack of price competition against the government for the same services. Which exists, of course, because, as an entity which has granted itself legal monopolies over 18 “essential” legal services, it has effectively criminalized all of its competition. This, it has no legally operating competitors in the same territory. Granted, it may still have competitors, but by and large, they are forced into the shadows and the black market.

     A stateless society cannot exist without the right to challenge and avoid governments that become monopolistic and destructive of liberty. That is why these alternatives to government monopolization of legal services must exist, because they are the only avenues by which we can challenge the state. And we must challenge the state, because although its purpose is supposedly to protect and defend us and our justly acquired property, the state has no idea what this means, and merely pretends and fails to do so. Also, because the state is determined to make all of our decisions for us, and resolve all of our disputes for us, whether we ask it to or not.

     No alternative to the state's monopoly on morality, may be found, except through direct and open competition against the state. That is, competition to provide a more just set of moral principles, better ideas about who should be the sources of law and why, and better guidelines as to which set of contractual norms are ethically permissible in a just, equal, and free society. That is why we must understand which alternatives to state provision of legal services have been tried in the past, and have been successful.

     Anyone who understands that slavery, discrimination, apartheid, and conquest have all been legal at one point - anyone who understands that what is legal is not always right, and vice-versa - should be able to admit that we cannot be a moral society unless and until we challenge the state's monopoly on morality. And we cannot do that without challenging its monopolies on the provision of legal services.

2e. Holding the State Accountable Through Private Alternatives

     If we are agreed that monopolies are bad, and that the state having monopolistic characteristics is bad too, then we must admit that the state allowing alternatives to itself, must logically permit all of those alternative methods of legal service provision to exist.

     Even if they pose a real physical threat to the state at some point, so what? Statist national governments have killed hundreds of millions of people; they deserve to be threatened and destroyed, because not only did they initiate violence by conquering the land and the people who lived on it, their principle of statism is based on the idea that initiating violence - that is, starting a fight - can be made legitimate and legal, and be used to resolve disputes.

     To be direct, this is thought to be a better alternative than letting dueling exist in the world. Basically, we have to choose between legalizing dueling and trial by combat, versus letting private arbitrators and P.I.s to exist, and holding governments accountable for legalizing their own crimes and behave in general like wolves marking their territory. I say this not to dehumanize leaders of foreign countries, but to, in a very literal sense, compare the brutality and illogic of statist governments' insistence upon wielding monopolies of exclusive domination and domain over territories.

     The fact that private arbitrators, private investigators, and other alternatives, exist, means that we have not only a way to resolve our disputes, defend ourselves and our property, etc. without the state - and a way to do so formally, in a way that we can choose to be final and binding - we have a way to challenge the state legally.

     These alternatives, and common law courts, contract law, etc., are each sources of law in their own unique way. Federal legislation, state legislation, local ordinances, precedents arising from juries unduly influenced by an inordinate amount of judges' instructions, decisions of courts depriving people of their right to take a case to trial; these are not the only sources of law. The people are still the ultimate source of law, because in a just legal system, "governments derive their just powers from the consent of the governed" (as it says in the Declaration of Independence).

     We must develop legal alternatives to the state, and stop it from insisting upon resolving disputes in which nobody directly asked it to intervene.

2f. Where Law Comes From: A New Way of Thinking

     To understand how contract law can operate independently of the state, we must first understand that, for all intents and purposes, contracts are law.

     Even if at least because a person, in drafting a contract, wants and intends it to be binding. But if that means violence, and/or state intrusion, then, as David D. Friedman has explained, he may soon realize that the costs of asking the state to use violence against his business associates as a punishment for breaking the contract, can damage his reputation to the point where it threatens his ability to stay in business. And that may cause him to reconsider asking the government to get involved, and reconsider whether it's worth resorting to violence over the contract.

     In at least a loose and non-binding sense, the contracts - and even ordinary decisions we make verbally - which we make in close consultation with others, are "law". And if you can go out on a limb and understand that, then you can surely understand why judicial precedent that arises out of a jury's decision to override the judge and the prosecutor, ignore the police witness, and perhaps even sue the public defender, also resembles law.


2g. Representation Diminishes the Rights of Victims, the Accused, and Juries

     I'd like to remind the reader, once again, that all of these people - the judge, prosecutor, police witness, and public defender - receive taxpayer money, and they are all government employees.

     Additionally, as government employees, they all arguably represent the state more than they represent their own clients. Not only attorneys, but also political representatives, exercise their clients' powers of attorney, and that arguably involves a diminution of the client's standing, and ability to be treated as anything other than a second-class subject to his representative who belongs to the political class (or ruling class, whichever you'd rather call it). Also, the state's insistence that the "public" (which does not exist, and is a malleable social construct) was harmed in a criminal act, can rob the victim of the attention and compensation they deserve.

     If the plaintiff and the defendant - that is, the supposed victim and offender - could represent themselves, then they wouldn't need lawyers. And it would be easier for them to represent themselves in court without needing to hire lawyers, if the laws were more simple in the first place. America and Japan are the only countries in the world that require lawyers to go to school for more than two years. If the law weren't so complex in the first place, we wouldn't need attorneys. If the law were simple enough to understand, then everyone would represent themselves in court, and everyone would know what a pro se defense is.

     Not only should we be able to understand the law, it's actually possible that ignorance of the law is a perfectly good excuse! South African attorney Clive Boustred, commenting on American common law, has stated that if a jury can't understand the law, then it's not law. This is to say that if the law is not comprehensible, then we cannot "understand" it. Legally this means to "stand under" the law, which is synonymous with obeying it. We must refuse to understand the law, for to understand it is to obey it. Montana native Ernie Wayne Tertelgte, whose videos are linked below, communicated well the idea that we have no obligation to understand the charges against us, when he told a Montana judge (in a case in which he was charged for foraging without a permit) that he insisted on speaking in plain language instead of legalese. Refusing to understand the charges against us, and refusing to acknowledge the jurisdiction of the court we are in (if appropriate), must also involve refraining from calling the judge "Your Honor", and instead "sir" or "ma'am" or their name.
     Grand jury indictments - which come before jury trials - are even more one-sided in favor of the prosecution than jury trials are. Grand jury indictments, which consist of between 16 and 23 jurors (instead of the 12 in jury trials), indict upon probable cause, while juries in jury trials find according to reasonable doubt. Additionally, nobody representing the defense (and, by implication, the accused) is present at grand jury trials.

2h. No Victim, No Crime

     The Latin term corpus delicti, meaning "the body of the crime", refers to the idea that a crime cannot be said to have been committed, unless a real person has been harmed, or their real property is damaged or missing. This means that a person who has committed an act which is deemed technically illegal - down to petty ordinances and infractions - is deemed a "criminal", even though he is not a true criminal in the sense that he has harmed anybody or stolen, broken, or damaged anything.
     Not only is it an establishment of law when juries refuse to convict someone who committed a non-criminal infraction, against a judge's and prosecutor's wishes; it is better law than the result the judge and the prosecutor are offering society each time they try to put someone in jail for committing tax evasion and having petty vices that harm nobody but themselves. If someone's vice makes them less productive, and that is not because somebody wants to jail them over it, then so be it. We do not have a right to other people's productivity, unless they willingly agree to work for our benefit. 
     Suspects should not be denied the presumption of innocence, by judges and prosecutors who want to collude to get paid while they put as many people as possible behind bars. Suspects should not be prosecuted to the fullest extent of the law for each count for which they are charged, if they have harmed nobody but themselves. Especially if nobody has called the police, or filled out a police report or Verified Criminal Complaint (V.C.C.) against them, alleging that they have committed some offense that personally harms them or their property.

2i. Where Standards Would Come From in a Stateless Society

     Part of fostering good and voluntary government will require a rejection of monopolistic structures and behavior in our government; not only in regard to legal services which are traditionally provided by the police and the courts, but also in regard to regulation of industries outside law and politics.

     In a stateless society, the regulation of non-governmental industries could be done by voluntary associations. Non-profit organizations, developing their own standards independently, would competing with others that do the same, while no such organization would be required to adopt the standards set by any state. These could be standards applied to industrial quality, safety, health, environmental quality, etc..

     For more information, look up the International Organization for Standardization (I.S.O.), which sets "proprietary, industrial, and commercial standards", and has states as members. I suspect that a society based on “voluntary governance” would be more open to having an agency like the I.S.O., and having it accept whole national governments as members; but a society built on statelessness and anarchism, might very well reject all affiliation with states.

     Or it may not, if it gets enough assurance that no state will tell it what to do. Whatever happens, as long as consumers and employees can hold standards-developing organizations accountable, the most reputable and trustworthy one will have more market share than the others. But not a monopoly, though; not as long as others are free to go into competition against it. Dominating market share alone does not render a firm a monopoly; a majority is not necessarily a monopoly.

     But back to the issue of legal services, directly.

2j. A Stateless Legal Order

     Through private arbitration, and through introducing and choosing alternatives to the state's monopolies over all of these legal services monopolies, we can usher-in a stateless society, and what I call a “stateless legal order”.

     I am not the first person to come up with this idea; various anarchist and libertarian theorists have used similar phrases to describe the voluntary but widespread adoption of legal norms outside of the context of a monopolistic state influence on the way we make our laws.

     As I use it, the term “stateless legal order” describes a paradigm in which governance still exists, but it is not monopolistic or compulsory. It wouldn't be monopolistic nor compulsory, because the provision of legal services would be decentralized, polycentric, or diffused, as well as highly or totally deferential to the need to ensure that individuals are in no way, shape, or form, coerced, tricked, defrauded, manipulated, extorted or blackmailed, intimidated or bullied, bribed, nor in any way unduly influenced into participating, contributing, abiding by decisions, nor abiding by consequences.

     The result of retaining law and courts, but rejecting compulsion and centralism, will hopefully be that nobody would, in any real sense, ever be forced to obey any law he thought inappropriate, or to submit to physical arrest or trapping as a consequence of refusing to do so.
     Except, of course (and as you would expect, there is debate on this too) if a person's actions actually interfere with someone's freedom from self-harm, or with their right to possess things that don't interfere with others' rights to do the same.
     Or if the transgressor promised to obey the law, and agreed to a particular set of consequences and punishments beforehand. In order to avoid problems which could be associated with this type of agreement, such as a death sentence or other harsh sentence that the victimized person might no longer feel the transgressor deserves, it might help to include in the original contract a stipulation that the wronged person is allowed to request a less harsh (but not a harsher punishment) than the one outlined in the contract. It's possible that such contracts could work, if high degrees of trust and assurance could be established, but it's important not to impose too harsh consequences solely for the sake of deterring parties from violating the contract. The consequences are too dire; if plaintiff and defendant invite violence into the equation, then the state is undoubtedly going to insist on being involved, because nobody is legally allowed to use violence to resolve disputes except the state.
     It may sound criminally stupid, but that's our government for you. The state is inherently based not only on monopoly, but also territory, and the idea that the right to initiate violence can be made legal and legitimate, and also given exclusively to one entity. Allowing that entity to sub-contract-out the right to use violence as a way to resolve disputes, to other, more local agencies, has thus far not worked. And so, regrettably, states' rights have, to a significant degree, served as an obstacle to federal insurance of our liberties, at least as often as they have served as protections from federal intrusion.
     That's why the decentralization of our legal system has to be a decentralization not only in terms of geography (away from the central power of the federal government in Washington, D.C.); it also has to be a decentralization in terms of structure of government, the balance of power between all existing levels of government, and last but certainly not least, the balance of power between governments and the people.

2k. Why A Stateless Society Would Lack Victimless Crime Laws, Criminal Law, and Legislation

     I believe that a stateless legal order would see the virtual elimination of criminal law, and legislation by elected representatives.

     If most people were to recognize that the public is a social construct, then they would realize that criminal law punishes us for committing victimless crimes, based on the idea that we somehow hurt ourselves or society in the process.

     A stateless or libertarian society, however, would have no laws against victimless crimes. Criminal law requires the convicted person to provide “compensation” to the state, and to the public, for damages which they were found to have visited upon a public victim, which arguably does not even exist. After all, "the state" and "the public" are not real people; because, even though they might be legally constructed "legal persons" or "corporate persons", they do not possess physical singular human bodies in the sense that individual human beings. Furthermore, "the state" and "the public" cannot appear in court, except through representation (by a judge, prosecutor, public defender, etc.).

     So without laws against victimless crimes, how can criminal law exist? This is to say, how can you commit a criminal act against a public which does not exist, and has no real person or justly acquired property to harm or damage in the first place? Certainly you can commit crimes that have actual victims (corpus delicti); but doesn't the fact that real crimes have victims, mean that interpersonal crimes are torts (which is to say that they are matters of civil law, not criminal law)?

     This is why I believe that criminal law does not need to exist. Civil law does, though. But civil law, unlike public criminal law, does not need to be administered through state courts, nor with the assistance or involvement of state government at all. As I explained, civil disputes can be resolved, out of court, through private arbitration, common-law courts, and among ordinary people who agree to other forms of decision-making.

     Aside from lacking criminal law and criminal law courts, I also believe that a stateless society would feature no legislation by elected representatives.

     I say this, first, because representative democracy would be impossible in a libertarian or stateless society; being that democratic voting would be more participatory, inclusive, open, consensus-based, and perhaps even unanimous in certain situations. The need for professional politicians and lawmakers will disappear, as more ordinary people learn how to propose laws, or how to learn the self-control and self-discipline necessary to live without inviting the state into their disputes.

     Second, because judicial precedent and the decisions of juries, as well as interpersonal contracts, are much better at accurately relaying the desires of the parties to the contract. Politically driven law can be every bit as personal as private law and contract law, but it shouldn't be; legislation should not pertain to particular persons or companies or groups, but should prohibit and punish only behaviors which victimize others (no matter who does them).
     (Note: When I use the term "private law" I mean to refer not only to business law, but more generally to all interpersonal contracts and all disputes resolved outside of state courts)

2l. Preventing Chaos and Amorality in a Stateless Society Without Using Violence

     Of course, the idea that we could ever abolish legislation and criminal law, and other state monopolies, might sound ridiculous and impossible to some people. But I believe that a stateless society could still feature courts, and even manage to retain long-standing legal customs (like those associated with “black letter laws”), without the use of either monopolistic government or compulsion.

     The alternatives to threats, compulsion, and top-down centralism and hierarchy, are: A) education about alternatives to legal services monopolies, through peaceful rhetoric and debate about the same, and B) advocacy for the voluntary and widespread adoption of desirable and popular legal traditions. According to Samuel Konkin, C), non-binding arbitration, is another potential solution to the resolution of disputes through the use of legitimized state violence.

     If non-compulsory methods prove insufficient or ineffective, in any particular or general circumstance, to get someone to stop harming others and stop disrupting the public peace, then it would be acceptable to use social ostracism, or forms of censure and refusal of support, against those are who reject legal or moral principles that are widely acknowledged to prevent conflict and to facilitate cooperation and peace between individuals.

     It would also be permissible to issue threats of a non-physical nature, or even of a physical nature, to stop someone who is an active threat to others. While some libertarians tending towards the right (such as Hans-Hermann Hoppe) may argue that banishment and "physical removal" sometimes don't go far enough, these methods should only be used if a fugitive from justice poses an immediate and credible threat of violence against others.

     If the person is not a threat, then it logically follows that the person could be influenced into turning himself in. For example, if many defense organizations were to decided to refuse to provide the fugitive with any protection (whether they decide to do so in cooperation or independently).

2m. Where the List of 18 Legal Services Comes From

     The purpose of this article is to expand on an idea I outlined in my 2011 article "The Six Justice Markets of Agorism". That article attempted to build on the work of radical libertarian theorist Samuel E. Konkin III, who explained in his writing that the state police and courts work in several different industries; such as investigation of crimes, criminal apprehension, incarceration, etc..

     Konkin named four separate functions of the police and courts. (Note: In truth, it has now been some eight or nine years after reading the initial piece by Konkin which inspired that article. I have since given my printouts of Konkin's books to someone as a gift. I can no longer recall exactly what Konkin's four functions were, nor can I recall which of his books it was in. It's also entirely possible that I'm talking about something out of Robert P. Murphy or David D. Friedman. But I can make my point without naming those exact four functions. I digress...)
     From the point of view of Konkin and David D. Friedman, there are three or four “essential” services that government provides. If you think about it, that really just means that government provides them as a monopoly, which is the only reason they're thought of as essential in the first place. That said, those three services are 1) personal and property protection, 2) contract enforcement, and 3) the resolution of disputes.

     Whatever four services Konkin named, they focused heavily on the activities of the police. Using Konkin's original four functions, I was able to expand them into six for that 2011 article. They were, in order I named them: 1) personal security and defense; 2) detention and arrest; 3) detection and investigation of crime; 4) dispute resolution / arbitration / adjudication; 5) criminal restitution; and 6) insurance and protection of property.

     For this article, I have taken those six functions, and split them into more specific types of services, in order to create a list of eighteen legal services over whose provision the state wields (or attempts to wield) monopoly. I have expanded upon the list of distinct court services, beyond those which I have known to have been specifically enumerated by Konkin and Friedman. I feel it necessary to do so because it helps to show the extent to which statism - that is, monopolistic, territorial, violent and aggressive forms of governance - dominates what some might call the "legal sector" or "law industry", but which would more accurately be described as a set of distinct functions and industries, each with their own reputation, each with its own history and tradition.
     But juridical history - at least going back further than 250 years - is beyond the scope of this essay. Suffice it to say that each of the legal services industries which the state has monopolized, deserve to be improved, and that most libertarians would admit that those industries would provide better service, and/or be more accountable, if they were subject to competition and had to prove themselves preferable to alternatives.
     This, to me, is the true meaning of "privatizing everything": adopting what businesses do right, to model government behavior upon; rather than modeling government behavior on the crimes and fraud that private interests commit after they've stolen the product of other people's labor.

2n. What the State Monopolizes Besides Legal Services

     Legal services are certainly not the only monopolies the state wields, nor seeks to wield.
     The Constitution acknowledges the federal government's authority to monopolize the minting of legal currency, and to create a common market. Also, by practice, to prohibit states from seceding and forming a confederation. Additionally, there's the patent monopoly, the federal government's original jurisdiction in Washington, D.C., its authority to establish a uniform rule of naturalization, its authority to establish a national language (oh wait, that doesn't exist), its authority to establish a uniform standard of weights and measures, its authority to establish post roads, and the local monopolies on the registration of property and zoning of property according to purpose of use.
     Also, the federal government has the exclusive authority to levy tariffs; since it is a national government with taxation power, and also the authority to control forts, arsenals, shipyards, etc., if need be. However, in an odd and unexpected way, the tariff monopoly is subcontracted-out to local merchants; or at least to those merchants who buy and sell foreign goods. I say that because merchants sometimes charge customers sales taxes which are meant to be paid by the seller.
     Think about it: shouldn't the seller pay the sales tax, and the consumer pay the consumption tax? If consumption and sales taxes can be done on a voluntary basis, then they could be acceptable. I still won't recommend either tariffs, sales taxes, or consumption taxes in general... But if large numbers of people do decide in favor of levying those taxes (even if only upon themselves), then why shouldn't the way those taxes are levied, make sense too?
     But as a matter of fact, it turns out that these monopolies which the federal government wields, are not monopolies at all. The word "monopoly" does not appear in the Constitution, nor does the Constitution authorize the federal government to be the sole provider of this or that good or service. That monopoly is simply implicit, and assumed; hence, it is a monopoly arising out of tradition. The federal government has only kept the illusion of this monopoly alive, through using its army to suppress domestic insurrections against unconstitutional federal actions, and through prosecuting people who mint their own silver and use it for payment, etc..
     Additionally, the fact that, when the federal government oversteps its boundaries - the Enumerated Powers - the states sometimes do not challenge it, also demonstrates that the federal government's monopoly exists based on tradition and consensus rather than any real legitimacy of its (non-existent supposed) monopoly powers. And that challenge is essential to providing competition against the federal government, which is, in my opinion, the largest source of illegitimate law in the country.
     If we are to foster an economy in which people are truly responsible for their decisions, transactions, and contracts, then sales taxes which are meant for sellers must not be transferred onto customers, and consumption taxes meant for customers must not be transferred onto sellers. These transfers would amount to externalization of costs, and that is a violation of the rights of the unaware buyer or seller to be informed if a transaction is being made which affects him. Both the buyer and the seller have a right to know why they are being taxed, and whether each party is paying the taxes they're intended to pay.



2o. The State's Monopolies on Land, Permits, and Legal Forms

     Another thing over which the government wields a virtual monopoly is land.
     I say that because, in common practice, the federal government has been allowed to own vast tracts of land. Also, because other levels of government have been allowed to utilize a system of land registration, land modification permits, and duration and exclusivity requirements in homesteading, to convert formerly free land ownership, into something which can only occur with government consent and protection, and only if we pay them (with the money that they create and regulate the value thereof).

    The fact that the state (through the police, courts, and other actors) performs all legal services as a monopoly, might seem like an ordinary and natural thing to us, and not a problem at all. But the state's monopoly on legal services affects us all; even the attorneys who have to pay whatever amount the state demands, for the legal forms which it wields a legal monopoly on printing and distributing (which is, of course, because it gave itself that monopoly).

     Aside from printing and selling legal forms, governments also have monopolies, including local monopolies, on issuing permits; whether for hunting, gun ownership, dog licensing, professional licensing, developing your home or your parcel of property, etc..
     I decided not to include the provision of legal forms as one of the legal services which government "provides" (i.e., compels us to come to it exclusively for that service). I don't have any ideas or suggestions as to how legal forms would work under anarchism. I do know how it works in libertarianism though...

2p. What Happens When the Government Does Too Many Things

     Most mainstream Libertarians – and even most right-wingers – understand that the government should not be doing too many things.

     If I remember correctly, around the time that Obamacare was introduced, someone (possibly libertarian-conservative columnist P.J. o'Rourke) said something like “we should not trust the same people who run the D.M.V., to regulate how we receive or pay for our kidney operations”. It may be an exaggeration, but it makes a good point. And radical libertarians, like Agorist Samuel Konkin, understood the idea that government should specialize in only a few things, even more thoroughly than most pragmatic political libertarians do today.

     What Konkin understood is that when government stretches itself too thin, and does too many things, and regulates and provides too diverse a set of services, it tends to fail or collapse. He also understood that it would be impossible to sustain something like the state in the private sector (which has a lot to do with why the state has to force us to buy a lot of its products in the first place).

     But most importantly, Konkin understood that the quality of a service is improved when the industry that provides it is specialized, differentiated, and to some degree independent of and competitive with other somewhat similar services. That's why he thought that even government services – including police investigation, property protection, personal protection, and other similar but nonetheless different functions traditionally performed by the police and the courts - would improve, if they were separate from one another.

     I would not say, however (and I suspect that Konkin wouldn't either), that if an agency provides detective work, then it shouldn't be permitted to offer to arrest someone they catch in the act, or that they oughtn't be allowed to have any role whatsoever in ensuring that victims receive criminal restitution. On the contrary; companies offering one of the legal services listed below, would not in any way be prohibited from providing any of the other services.

     But if a company were to offer too many different services, then we might reasonably fear that it would become a monopoly. However, in a truly free market system - which understands that competition against monopolies must be legal if it is to be successful – this would not be a reasonable fear.

     To borrow a phrase from the father of market-anarchism, Gustave de Molinari, as long as no legal services company could compel anybody to come to itself exclusively for any particular service, then no legal monopoly could possibly be wielded by any company. (Note: The original quotation, from the chapter "Competition and Security" in his 1849 book The Production of Security, linked below, was "...no government should have the right to prevent another government from going into competition with it, or to require consumers of security to come exclusively to it [the government] for this commodity."

    This means that as long as anybody can decide to go into competition against a government, then it is not really a state because statist governments are monopolistic, and do not allow others to compete with them for legitimacy. Likewise, if anybody can go into competition with a company wielding a large market share in a certain industry, then no monopoly exists in actual fact in that industry.

     This is not to say, however, that it is easy or legal to compete against a legally established monopoly; it is neither easy nor legal to do so. And also, oligopolies do emerge as the result of a single company gaining an inordinate market share. But I believe that this is impossible, without coerced gifts of stolen taxpayer property to businesses, which already receive extorted surplus value from laborers, on which they pay taxes to the government and additional lobbying funds (bribes) that help them stay in business and stay happy.

     Additionally, it's entirely possible - and quite likely, under a truly free system of markets, in which consumers could hold producers accountable - that when a company that begins to offer too many and too diverse a set of legal services, it would simply collapse under its own weight, due to various organizational and financial difficulties. Additionally, and most importantly, it would collapse due to the difficulties it experiences when trying to remain credible, while it is easy to see that it is intent on becoming a whole new statist government unto itself; and/or that the firm is much worse at providing certain services than it is at others, such that the costs of dealing with it become greater than the benefits.

     That's why I believe that in a stateless system, whether we have something we recognize as a market system or not, we do not need to ensure that firms operate for-profit, or on some kind of "minimally taxed and minimally regulated" basis, in order to ensure sufficient distance from the state, such that privatization is, in effect, truly private. Any supervision of any economic system by statist, monopolistic, corporative-federalist, centralized, or otherwise authoritarian regimes, will - I believe - always tend towards the creation and protection of monopolies, and insulation of businesses that already wield large market shares and don't need to be insulated from legal protection, price competition, foreign competitors, and economic changes brought on by technological progress which render his services obsolete, and so forth.

     Fuck the state.

3. List of 18 State-Monopolized Legal Services

1. Security and Protection of Individual Persons

2. Collective Defense

3. Protection of Personal Physical Possessions

4. Protection of Physical Private Property

5. Protection of Intellectual Property

6. Enforcement of Contracts

7. Investigation and Detection of Crimes

8. Apprehension and Arrest of Fugitives from Justice and Cooperating Persons

9. Detention and Holding

10. Legal Defense of Criminal Suspects

11. Legal Prosecution of Criminal Suspects

12. Juror Selection

13. Finding of the Facts of the Case, and of Guilt

14. Arbitration / Adjudication / Resolution of Disputes

15. Interlocking Arbitration Agreements

16. Punishment of Convicted Criminals

17. Restitution

18. Criminal Rehabilitation

4. Alternatives to Those State Monopolies

1. Security and Protection of Individual Persons

     A) State: None (because police officers cannot be found legally responsible for failing to protect and serve any particular member of the general public without a private contract, and because the military defends people on a collective basis rather than on an individual basis).

     B) Privatized: Police officers / police departments (but only for individuals whose personal protection comes as a function secondary to protecting their physical property; see Warren v. D.C. for more information). Also, state-licensed "private" security guards have a duty to protect individuals over property.

     C) Anarchist: Self-defense; volunteers wishing to protect those incapable of defending themselves; volunteers wishing to help others defend themselves; and bodyguards receiving adequate compensation (but not receiving bribes, nor surplus profit).

2. Collective Defense

     A) State: The organized military; under the various departments of the U.S. Armed Forces, and the state National Guards. Additionally, the United Nations' army, N.A.T.O.'s army, and other international military forces made up of national brigades. Especially if the military in question operates on a compulsory draft system, and especially if the 

     B) Privatized: Mercenaries and military contractors (although they do not actually provide collective defense, only the illusion thereof, and some relief for U.S. troops). Also, unorganized militia, if operating according to restrictions outlined in the U.S. Code, and being constituted in order to discourage federal overreach.
     A "mandatory civilian national service program" could probably also be described as a privatization of collective defense, since it would compel people to participate in non-combat jobs that support the military, however directly, in addition to directly compelling certain people to participate in more direct, active, strictly military and defense related roles.

     C) Anarchist: The unorganized militia (operating without regard to legal definitions of who constitutes the militia), anarchist military columns (such as the C.N.T.-F.A.I. in revolutionary Spain), and volunteers wishing to contribute to common defense (as long as they are adequately compensated, not bribed or cajolled into doing so, not given excess pay). It is also worth noting that no participation in such a militia or collective defense outfit is truly anarchist, unless participation is totally voluntary.

3. Protection of Personal Physical Possessions

     A) State: State-regulated, state-licensed renters' insurance companies, and other types of state-affiliated insurance companies.

     B) Privatized: For-profit, "private" security guards for hire; especially if they are still required to be licensed by the state, and/or experience lower levels of taxation and regulation than other similar companies.

     C) Anarchist: The possessors themselves, or nobody, or non-profit possession recovery agencies. 

     Mutual recognition, on the part of all members of society, that personal possessions should be considered justly acquired, truly earned, and immune from rivalry, as long as they were not stolen, and provided that nobody derives their living from the ability to use or access that possession (so therefore it would not make sense for the possession to be managed by large numbers of people).

     Also, a less rivalrous society, in which our needs are easier to obtain, would be one in which we would feel much less uncomfortable about leaving our possessions unlocked and unguarded. With sufficient abundance, and sufficient respect of others' possessions, protecting possessions might become unnecessary someday.

     Non-for-profit firms, operating on the principle "cost the limit of price" and without state affiliation, could also offer insurance and protective services designed to result in the recovery of stolen possessions.

4. Protection of Physical Private Property

     A) State: Police officers, contracted to protect private business properties.

     B) Privatized: For-profit, "private" security guards for hire; especially if they are required to be licensed by the state, and especially if they protect public property, or the property of firms that are subsidized by taxpayer funds.

     C) Anarchist: None.

     Anarchists are opposed to "private property" (at least, insofar as that term refers to the private, exclusive, exclusionary ownership of property, and the renting-out of that property so as to exact surplus value therefrom).

     An anarchist society would be based on "anideotism", which means the rejection of private property, and also called anti-propertarianism). In an anarchist society, a set of principles regarding the just acquisition and retention of property - called "occupancy and use norms" - would ensure that nobody's private property claims are protected from challenge, as long as doing so requires a state, or if it would make more sense for that private property to be managed by large numbers of people who depend on it for survival.

     Anarchist organization of society would prevent governments from promising land claims to particular persons forever and ad infinitum, but it would not prevent people from doing honest work to acquire possessions, not from homesteading, nor trading those possessions and residences at will (and without being obligated to consult a compulsory government first).

5. Protection of Intellectual Property (And a Word on Anarchists' Ideas on I.P.)

     A) State: The U.S. Patent Office (with patents, copyrights, trademarks, trade secrets, etc.).

     B) Privatized: State-licensed intellectual property enforcement agencies. For example, if the Patent Office were to somehow contract-out the authority to prosecute people who violate other people's intellectual property claims.

     A privatized version of intellectual property protection as we know it, would likely involve patent terms of much shorter durations. Shorter patent terms would allow competitors to start developing alternative techniques and processes to make knock-off brands, sooner than they would if the patent term were to expire after a longer period of time.

     C) Anarchist: Probably nobody.

     Most anarchists agree that (as Kim Dotcom said) "information wants to be free" (that is, both free to move, and free of cost). Most anarchists reject intellectual property on the grounds that, since it is not physical, it therefore cannot be destroyed. The creation of copies of an original, through piracy of intellectual property, cannot result in damage to the original thing either, only in duplication.

     Whether the "value" of the original thing, is diminished in the course of duplication, is debatable. Although it appears that a person who pirates something, and then sells it, is arguably "profiting", this does not meet the standard required to conclude that a crime has taken place, because the person has not attempted to derive exclusive benefit from, nor wield the exclusive right to profit off of, the intellectual property in question.

     Moreover, intellectual property claims are often dubious to begin with. Some patents are given for merely making developments upon other people's previous inventions, or for developing techniques for the applications of known physical laws to objects, rather than being given out for genuinely inventing something new and original. There is apparently no evidence that 1890s U.S. Patent Office commissioner Charles H. Deull ever said "Everything that can be invented has been invented", but I think that it would not be inappropriate to say the same.

     Enforcement of intellectual property also leads to restricted flow of information, which can include the information necessary to perform necessary functions, to work, do produce things, etc. . And lack of technical and professional knowledge can lead to stagnation in the development of technology. The impetus to allow technological stagnation to occur, as an alternative to allowing intellectual property claims to be tread on and ignored rather than enforced, is often done in order to protect existing jobs.

     If we were to "privatize" intellectual property enforcement as we now understand "privatization", it would involve active privatization performed by the state, rather than defunding and abolishing the Patent Office and resolving to take no further political efforts to address the I.P. issue.

     This privatization would involve a partial outsourcing of the responsibility to enforce I.P. claims; for the most part, to for-profit "private" firms (which would, of course, not truly be private in the full sense, because they would have government contracts). This partial outsourcing of solely the enforcement function would result in the illusion of an alternative to enforcement of I.P. claims according to federal law, and thus, it would also result in the mere illusion that there is anything but a monopoly on I.P. enforcement.

     But then again, a wider variety of firms enforcing I.P. claims, is not something that anarchists want, it's something that is mostly desired by Libertarians. Also, outsourcing the responsibility to do something about I.P. claims going unchallenged to a bunch of for-profit firms, while the people at the federal government sit back and make money pretending that they're the ones managing I.P., isn't a solution to the problem of the federal monopoly on I.P. enforcement; it just duplicates and multiplies the problem. It also might involve an externalization of costs, that would need to be internalized, if it could be said that there would be a true free market in I.P. enforcement.

     As an alternative to state interference in the job market, and in technology and in intellectual property disputes this way, anarchists take a very different view on intellectual property. Most anarchists favor collaboration, sharing, and the commons, as better ways to achieve equal access to information, inventions, and ideas, than strict protection of private property claims in intellectual property. That's why P2P (that is, sharing through peer-to-peer networks), and creative and collaborative commons, are alternatives to both centralized protection of intellectual property by the government, and overly centralized networks of computer servers).

     However, if, in an anarchist society, certain types of intellectual property were deemed necessary, then nothing would stop anarchists from creating a non-for-profit firm, which operates on the principle "cost the limit of price" and without state affiliation, whose goal is to recover pirated copies, and exact reparations from people who violate intellectual property claims. But that would only work, and be voluntary, if the pirate voluntarily agreed not to violate the intellectual property claims of the producer of the original work in the first place.

6. Enforcement of Contracts (And a Word on Enforcement)

     A) State: Taxpayer-funded police officers, working on behalf of the state / the public.

     B) Privatized: Private arbitration. Especially if private arbitrators are licensed by the state. Also, "private" security guards who enforce contracts between private parties, but which are not so private because they are state-licensed and/or only carry out an enforcement task which was outsourced to them by a statist government.

     C) Anarchist: Contract enforcement agencies.
     Such agencies would be truly "private" in the sense that they would be non-state-affiliated. But they would not be private in the sense of being for-profit firms that are regulated and taxed according to legislation. These contract enforcement agencies would operate on non-profit, not-for-profit, mutual, or cooperative basis.
     This would avoid outsourcing the government's responsibilities to the public onto a private firm, which could take advantage of its taxpayer subsidization, and the regulatory capture arising from its contract and professional regulation favoring it, to decline to provide recompense to the public for pursuing the privatization of short-term profits for the few, with public money.

     Having agencies that enforce contracts - or any other type of law, agreement, or patrol the streets if applicable, etc. - operate on a non-for-profit basis, rather than a for-profit basis, would take the good things about private security (like professionalism), but leave the bad things behind (like the taxation of income for providing private security, and the requirement that guards be charged for licenses to practice their profession. Especially if the state never sends them the professional certificate (I'm looking at you, Illinois).
     Private security guards are trained to be professional; to know how to address people from a position of trust and authority but without being disrespectful or condescending. And most importantly, without inciting violence instead of de-escalating it. Security guards, if they care about their jobs, are motivated by genuine service to protect people and promote the safety of their community, rather than the need to protect private property and their bosses' salaries. I suspect that that's a big part of why those of them who don't become police officers, don't become police officers.
     

7. Investigation and Detection of Crimes (And a Word About Compensation)

     A) State: Federal Bureau of Investigators (F.B.I.), and state, county, and municipal police detectives, paid with taxpayer money, in U.S. Dollars only. Especially modern police officers who go on patrols, and work beats. Investigators focus on investigating anything deemed to be an offense against the state or public.

     B) Privatized: Private investigators, operating for profit, and according to state regulations and professional licensing requirements. Privatized investigators would have choice as to what type of compensation they would receive, but that choice would be limited. A "minimal government" would feature the state, alongside limited competition among currencies. So in a minimal government, privatized investigators could be compensated with either the U.S. Dollar, gold, or silver, or a cryptocurrency (that is, if government were to legalize payment of taxes and labor in some cryptocurrency, and recognize it as a legitimate currency alongside the Dollar).

     Mid-20th century American "Officers of the peace" were an alternative to modern-day beat cops, because they did not go on patrols, and do not work a beat. An officer of the peace who takes common law seriously would only respond to calls and police complaints which are signed and affirmed by a real person of interest, claiming that some violation of a real person or justly acquired possession has occurred.

     Private investigators can investigate anything, whether legal or not, and whether a corpus delicti crime or N.A.P. violation or not. Private investigators can have state actors, private citizens, or other firms, as their clients. In a libertarian society with a "minimal government", private investigators would likely focus on investigating allegations of breaches of contract and violations of private property rights.

     C) Anarchist: Non-profit and not-for-profit private investigation firms. These include voluntary private investigation associations made up of volunteers, who would be free to donate their time or elect to receive compensation. That compensation could be in any form. Investigators focus on investigating real threats to people and their justly acquired possessions. Anarchist investigation firms would reject all efforts to investigate allegations of intrusions upon private property, and would likely reject many requests to investigate breach of contract.

8. Apprehension and Arrest of Fugitives from Justice and Cooperating Persons

     A) State: Taxpayer funded police officers arrest, and even shoot, suspects, whether they're cooperating or not.

     B) Privatized: For-profit bounty hunters (and bounty hunters' associations); especially if operating according to government regulations, and apprehending only people they're asked to by government.
     Citizen's arrest can also be a form of detaining suspects, which, to some extent, resembles privatization; that is, it isn't fully statist because the police don't perform the arrest, and it isn't fully anarchist because it's a citizen's arrest and has to be done lawfully. Additionally, it is worth noting that in common law courts, turning oneself in is optional. This could be described as making criminal apprehension voluntary.

     C) Anarchist: Bounty hunters' associations operating according to the "cost the limit of price" principle, without a surplus profit motive, and without state affiliation. Such associations could apprehend anyone they are asked to, and when and whether the client pays, and how, could be negotiated between them.

9. Detention and Holding (And a Word About Private Prisons and Gulags)

     A) State: Taxpayer-funded police officers who transfer prisoners to and from holding cells, jails, and prisons. Also, taxpayer-funded prison guards, whom are government employees. Facilities which house inmates include maximum-security prisons, especially those which employ corporal punishment. Also, prisons which work inmates to the bone, and work them for profit.

     B) Privatized: "Private" prison guards working in private prisons that were given government contracts, and/or were privatized through government action. Especially those private prison guards whom are taxed and regulated, operate according to government standards and professional regulations, work for a for-profit firm, or whose income is partially or totally taxpayer-funded.
     Also, certain state-licensed for-profit "private" security guards for hire, who work on private property, and are authorized to temporarily detain people on-premises if they are suspected of shoplifting (although not all private security guards are authorized to make arrests). Work-release programs that allow offenders to travel in communities with little supervision, even near their former victims, could also be described as "privatized", being that they grant autonomy to the offender. Of course, the problem I'm describing is the granting of too much autonomy, to an offender who probably should live physically apart from his past victim(s) and large numbers of people he might hurt in a similar way.

     C) Anarchist: Probably mental facilities and minimum-security detention facilities; operating without state affiliation and not operating for profit.
     The issue of how people would be jailed without the state, is one of the most important issues that "Anarcho-Capitalists", market-anarchists, and other stateless libertarians have to contend with. That's because aside from private security forces (mercenaries) in Iraq, privatized prisons are one of the most publicly visible topics related to alternatives to state functions.
     I do not wish to discount people's worries with respect to for-profit private prisons. I do believe that both the profit motive, and the state affiliation, which these prisons feature, are harmful to the ability of the prisons to stay independent from the state. I completely expect prosecutors and judges to collude more to convict more people and send them to prison, if and when there is a profit motive involved.
     We do not need to spend public money to keep people behind bars; especially not for committing victimless crimes (because they are no threat, and incarcerating them is only going to help them meet real criminals). But if prisons and jails need to exist in the first place, then they should house only those people who are actual threats to other people; only people who committed violations against other people's freedom from bodily harm and their right to be secure in their justly acquired possessions. If we can incarcerate an appropriate, manageable amount of people, who are legitimate threats to others, then some forms of detention can be considered viable alternatives to the state, and therefore might be worth trying.
     Since politics and legislation determine what a person can be incarcerated for, I support fully privatized non-state-affiliated non-for-profit detention facilities, rather than for-profit semi-private prisons, which, once again, simply outsource the state's enforcement functions to private actors, rather than solving the problems associated with jails (like that they concentrate large numbers of people in the same location, risk the spreading of communicable disease, and result in an exploitation of prison labor for surplus value).
     If common law and anarchism somehow co-existed, then common law's lack of consequences for not turning oneself in, would likely make it less necessary to detain and hold people against their will (especially if the conditions they are in while awaiting trial are not inhumane).
     Mental facilities would be free to operate, and provide hospitality to people who check themselves in voluntarily; as long as those mental health facilities operate without state affiliation, without taxation or regulation, without a surplus profit motive, without being burdened by a state licensing system, and without a reward being offered to put as many people as possible behind bars.
     Aside from mental facilities, a variety of organizations could serve the purpose of providing hospitality to people who want to turn themselves in for committing a crime (whether they are being suspected of a crime now, or whether they committed a crime in the past and want to confess). Hospitals, hostels and Airbnbs, halfway houses, churches, and charities could all provide alternatives to mental facilities and jails.
     You can also read my 2018 article "The Gulags Were Less Harsh Than American Prisons", to learn why I think the Soviet gulag system had some advantages, despite its reputation for harshness. Although the Soviet gulag system system did involve long sentences, compulsory labor, and significant prison populations; Soviet maximum sentences were shorter than American maximum sentences, inmates should at least work enough to offset the costs to the prison system of them being in there (but they should not be worked harder than necessary to justify those costs), and the gulag system at least spaced penal colonies out and allowed inmates plenty of fresh air.
     

[#10-18 will be added soon.]


10. Legal Defense of Criminal Suspects

     A) State: X

     B) Privatized: X

     C) Anarchist: X

11. Legal Prosecution of Criminal Suspects

     A) State: X

     B) Privatized: X

     C) Anarchist: X

12. Juror Selection

     A) State: X

     B) Privatized: X

     C) Anarchist: X

13. Finding of the Facts of the Case, and of Guilt

     A) State: X

     B) Privatized: X

     C) Anarchist: X

14. Arbitration / Adjudication / Resolution of Disputes

     A) State: X

     B) Privatized: X

     C) Anarchist: X

15. Interlocking Arbitration Agreements

     A) State: X

     B) Privatized: X

     C) Anarchist: X

16. Punishment of Convicted Criminals

     A) State: X

     B) Privatized: X

     C) Anarchist: X

17. Restitution

     A) State: X

     B) Privatized: X

     C) Anarchist: X

18. Criminal Rehabilitation

     A) State: X

     B) Privatized: X

     C) Anarchist: X

5. Resources

Anyone interested in learning more about this topic can click on the following links:

Links to articles by Joe Kopsick:

- "The Six Justice Markets of Agorism"
http://aquarianagrarian.blogspot.com/2011/07/agorism-summary.html

- "Intellectual Property: Adam Kokesh et al. vs. a Polyarchist Approach"
http://aquarianagrarian.blogspot.com/2012/07/intellectual-property-adam-kokesh-et-al.html

- "Is it Time to Legalize Murder?"
http://aquarianagrarian.blogspot.com/2012/12/is-it-time-to-legalize-murder.html

- "On Max Weber's Definition of the State (Incomplete)"
http://aquarianagrarian.blogspot.com/2013/07/on-max-webers-definition-of-state.html

- "Twenty-Five Reasons Why Political Libertarians and Anarcho-Capitalists Are Not Anarchists, But Should Be"

http://aquarianagrarian.blogspot.com/2014/01/twenty-five-reasons-why-political.html

- "Altering the 2nd Amendment to Protect Conscientious Objection"
http://aquarianagrarian.blogspot.com/2014/05/altering-2nd-amendment-to-protect.html

- "The Road to Panarchy: An Interview with Joe Kopsick"

http://aquarianagrarian.blogspot.com/2015/09/the-road-to-panarchy.html

- "Protecting Victims Through the Abolition of Law"http://aquarianagrarian.blogspot.com/2015/12/protecting-victims-through-abolition-of.html

- "Government is the Source of Corporate Privilege"
http://aquarianagrarian.blogspot.com/2016/04/government-is-source-of-corporate.html

- "The Gulags Were Less Harsh Than American Prisons"
http://aquarianagrarian.blogspot.com/2018/12/the-gulags-were-less-harsh-than.html

Links to works by other authors and speakers:

- The Production of Security by Gustave de Molinari
http://mises.org/library/production-security-0

- New Libertarian Manifesto by Samuel E. Konkin IIIhttp://agorism.info/docs/NewLibertarianManifesto.pdf

- An Agorist Primer by Samuel E. Konkin III
http://www.kopubco.com/pdf/An_Agorist_Primer_by_SEK3.pdf

- “Saga Period Iceland” by David D. Friedman
http://www.daviddfriedman.com/Academic/Course_Pages/Legal_Systems_Very_Different_13/Book_Draft/Systems/SagaPeriodIceland.htm

- “Private Creation and Enforcement of Law” by David D. Friedman
http://www.daviddfriedman.com/Academic/Iceland/Iceland.html

- “Law Without the State” by David D. Friedman

http://www.youtube.com/watch?v=vSrf9j2pvmU

- Chaos Theory: Two Essays on Market Anarchy by Robert P. “Bob” Murphy
http://mises.org/library/chaos-theory
http://mises.org/library/chaos-theory-two-essays-market-anarchy

- “The Decline and Fall of Private Law in Iceland” by Roderick T. Long
http://praxeology.net/libertariannation/a/f13l1.html

- “The Solution to Creating Liberty” by Schaeffer Cox
http://www.youtube.com/watch?v=sypZPeIAJ4o

- "CopperCards.com" by Clive Boustred: South African attorney talks about U.S. common law
http://www.youtube.com/watch?v=eF-vHR2IanA&list=PLA642ADC641030059

- Videos featuring Ernie Wayne Tertelgte
http://www.youtube.com/watch?v=zuy_2Cq8HAA
http://www.youtube.com/watch?v=gK7MYr_4z4k
http://www.youtube.com/watch?v=qsNCWCQ-cLw

- Kevin Carson on decentralized networks
http://theanarchistlibrary.org/library/kevin-carson-who-owns-the-benefit-the-free-market-as-full-communism



Other links:

- Warren v. D.C.
http://www.youtube.com/watch?v=lb3rAglRsqU

- Dark history of private security and private defense
http://www.britannica.com/topic/Pinkerton-National-Detective-Agency
http://www.history.com/news/10-things-you-may-not-know-about-the-pinkertons
http://www.everycrsreport.com/reports/R40991.html
http://www.defenseone.com/threats/2016/02/back-iraq-us-military-contractors-return-droves/126095/
http://foreignpolicy.com/2016/05/18/private-contractors-are-the-silent-majority-of-obamas-military-mercenaries-iraq-afghanistan/
http://www.theatlantic.com/international/archive/2016/08/iraq-afghanistan-contractor-pentagon-obama/495731/

- Jury nullification
http://www.law.cornell.edu/wex/jury_nullification
http://www.aclu.org/blog/free-speech/its-perfectly-constitutional-talk-about-jury-nullification
http://www.youtube.com/watch?v=l7nqdV7wV2k

- Fully Informed Jury Association
http://fija.org/

- "Never Take a Plea"
http://www.hg.org/legal-articles/when-should-you-accept-a-plea-bargain-in-your-criminal-case-30893
http://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/

- Pro Se defense
http://www.law.cornell.edu/wex/pro_se
http://www.rocketlawyer.com/article/what-is-pro-se-legal-representation.rl
http://www.legalmatch.com/law-library/article/advantages-and-disadvantages-of-pro-se-criminal-representation.html

- Private arbitration
http://www.arbserve.com/pages/private_arbitration.htm
http://www.thebalancesmb.com/arbitration-vs-litigation-what-is-the-difference-398747
http://www.manhattan-institute.org/html/private-arbitration-10886.html
http://www.lexology.com/library/detail.aspx?g=17951943-c0e8-4c6c-8e73-487c5f50fb73

- George Mason on the militia
http://thestatepatriot.com/what-is-the-militia

- Seventh Amendment
http://www.youtube.com/watch?v=SJS_7FDErkU

- International Organization for Standardization (I.S.O.)
http://www.iso.org/home.html

- Surplus profit and "cost the limit of price"
http://en.wikipedia.org/wiki/Superprofit
http://www.assignmentpoint.com/business/finance/cost-limit-price.html

- Woman forced to sue nephew due to insurance law
http://www.nbcnewyork.com/news/local/Woman-Sues-Nephew-Jump-Arms-Birthday-Party-Blame-Insurance-Court-Connecticut-Jennifer-Connell-332755551.html

- People who sued themselves
http://listverse.com/2018/06/29/10-people-who-sued-themselves/

Originally published under the title

"Privatization or Anarchism?:

Providing Alternatives to the State's Monopoly on Legal Services"

Originally written and published on March 8^th, 2019

Edited and expanded on March 10th and 11th, 2019