You always know you’re venturing into interesting territory when you arouse defenses like “Because!,” “You’re an idiot,” or “Everyone knows…”
Such are the defenses that pop up when touching the concept of justice separate from the state. It was, in my experience, something of a verboten subject, considered ridiculous and rude at the same time. It was – again in my personal experience – something that everyone just “knew” was impossible and which they also knew was dangerous.
And yet, they had no real reasons upholding their opinions. Certainly they struggled to assemble reasons once I said, “I don’t think so” (humans are really good at that), but it was very clear that the decision was made first and the facts assembled second.
I was thrust into this subject quite a few years ago, as cypherpunk projects ran into the reality that humans are unfinished creatures and sometimes end up in disputes with each other. Once cyberspace appeared, quite a few of us realized that it was a kind of terra nova, the first new continent opening since 1492. (1606 for Australia.) We wanted to do something good with it, something better than the territorial overlords were doing to humanity.
To give you some feel for the moment, here is a passage from J.P. Barlow’s A Declaration of the Independence of Cyberspace, published in 1996:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
So, with a separation imperative in mind, we were confronted with the fact that some kind of law or justice service was necessary. And so, I began digging into the subject.
What I Found
I learned that justice without state was common throughout history. And more than that, it seemed to have worked quite well over long periods of time. That seems utterly impossible to any mind that has gone through the modern school “curriculum,” but the facts remain, no matter how many knees may jerk at the thought.
Here, briefly, are some of the instances I found:
The Greek reset and the early Hebrews
At about 1200 B.C., nearly every civilization in the Eastern Mediterranean was plucked out by the roots. (Egypt just barely survived.) Then, for some 400 years, government was all but absent, and the cultures reset. This is commonly called the dark ages of the Greeks.
During this period, Greek law was nonexistent, and justice was handled almost on a family level. We haven’t a great deal of written matter from the Greeks, but we do from the early Hebrew civilization, which thrived during this window of time.
The early Hebrews – for some number of centuries – were a tribal anarchy, with no state at all. Aside from religious rules, their “laws” amounted to don’t lie, steal, or kill; don’t oppress the weak; don’t speak derogatorily of others; don’t take revenge; and don’t hold a grudge. And they were far more interested in justice than in law. For example, we find these passages in their earliest writings:
Defend the poor and fatherless: do justice to the afflicted and needy.
Justice, justice shalt thou pursue.
After the fall of Rome, Europe had its reset period. And during this time, the many towns of Europe all developed and enforced their own justice. As historian R.H.C. Davis writes:
Even the law might change from village to village; a thirteenth-century judge pointed out that in the various counties, cities, boroughs, and townships of England he had always to ask what was the local customary law and how it was employed before he could successfully try a case.
Historian Chris Wickham explains what these people did, then provides a nice example from a French town:
When disputes were dealt with, it was the villagers who reached judgment; they also acted as oath-swearers for the disputing parties, as sureties to ensure that losers accepted defeat.
In one notable case of 858 in the plebs of Treal, [a man named] Anau had tried to kill Anauhoiarn, a priest of the monastery of Redon, and had to give a vineyard to Redon in compensations, as an alternative to losing his right hand; here, six sureties were named, and could kill him if he tried such a thing again… most judgment-finders and sureties were peasants; the villages around Redon policed themselves.
So, even the hard case of attempted murder was dealt with quite well by the locals of a “Dark Ages” town in rural France. There is absolutely no reason to believe that we couldn’t do as well.
By about 900 A.D., the people of Westphalia (now Germany) were operating their own justice system, even though there were (at least intermittently) princes in the area who wouldn’t like it. Running what they called “Vehm” courts, they issued warnings to troublemakers, issued warrants, and occasionally had to execute someone.
The Vehm did have secret trials but only as necessary. Their meeting places were always known to the locals, and they never used torture, even though the princes did.
The Vehm was taken over by the state in 1180 A.D.
The great medieval trade fairs had their own system of justice called the Lex Mercatoria or Law Merchant. Separate from state justice, it operated quite well over a long period of time. Eventually, however, the states took it over and more or less rolled it into their systems of law.
As historian Paul Johnson writes in A History of the Jews:
The Jews always ran their own schools, courts, hospitals and social services. They appointed and paid for their own officials, rabbis, judges… Wherever they were, the Jews formed tiny states within states.
Under less-than-hospitable conditions, Jewish self-rule, including the provision of justice, thrived from the fall of Rome until just the past few centuries.
Right now, arbitration – more properly known as alternative dispute resolution or ADR – is thriving as an alternative to state justice, which has become so expensive and cumbersome as to be impractical. This is true for high-end commerce, for labor disagreements, and down to the level of disputes among construction contractors.
ADR works very well and is far less expensive than government justice. It is restricted only by governments, who enforce specific limits.
Right now there are quite a few Internet arbitration providers. They stand in a fairly murky area, but the states haven’t clamped down on them yet. I haven’t had any experience with them, but so far as I know, they provide good service.
And Compared to What?
Whenever something new comes along – like providing justice outside of state power – people instinctively look for flaws in it. Then, finding even one, they leap to the conclusion that “it won’t work.”
The truth, of course, is that the current systems of law are full of flaws from end to end. They are corruptly applied; laws are bought and sold; they are insanely expensive; and they are unforgivably slow. And perhaps worse, they change with every new session of the legislature.
So, if we are to take perfection as a standard, state-provided justice fails, and very, very badly.
Why All the Hate?
Having given you a quick overview of non-state justice, the question remains as to why modern people are so biased against the very concept. To answer that question, at least partly, I leave you with a short passage from Carl Jung’s The Undiscovered Self:
[I]n order to turn the individual into a function of the state, his dependence on anything beside the state must be taken from him.