The Kuyperian Commentary

Politics, Economics, Culture, and Theology with a Biblical Viewpoint

Private Justice vs. Biblical Justice

Click for more in this series: Part 1, Part 2, Part 3, Part 4, Part 5

Anarcho-capitalists believe that all government services can be provided satisfactorily and more efficiently by the free market, including law enforcement. In their ideal society, judicial services would be offered by private agencies just like any other good or service. This must be the case if all taxation is inherently immoral.  Murray Rothbard explains:

Defense in the free society…would therefore have to be supplied by people or firms who (a) gained their revenue voluntarily rather than by coercion and (b) did not—as the State does—arrogate to themselves a compulsory monopoly of police or judicial protection. Only such libertarian provision of defense service would be consonant with a free market and a free society. Thus, defense firms would have to be as freely competitive and as noncoercive against noninvaders as are all other suppliers of goods and services on the free market.” – Man, Economy and State, chapter 13

What this means is that within any given territory, multiple judicial agencies would open up and compete for your business. Different agencies would provide different services based on different standards of law. Hypothetically, you could have a Muslim agency that operates under sharia law and a Christian agency that operates under biblical law. You simply pick which company you prefer. When two people are in conflict, their respective agencies will deliberate until they agree on the appropriate conviction and punishment. Rothbard admits that this could not work unless all agencies followed the non-aggression principle:

It seems to me that in order to be considered legitimate, any court would have to follow the basic libertarian law code of the inviolate right of person and property. For otherwise, courts might legally subscribe to a code which sanctions such aggression in various cases, and which to that extent would violate the definition of anarchism and introduce, if not the state, then a strong element of statishness or legalized aggression into the society.” – Society Without a State

This is possibly where the accusation against anarchy as being “utopian” originates. History is full of civil rulers committing acts of aggression against their subjects – why will that change if we abolish the state? Well, it won’t, according to anarchists. But since no institution would have a monopoly on justice, consumers have the option of taking their business elsewhere. If an agency becomes tyrannical it will simply go bankrupt as consumers switch to the competitor. In our current situation, the state has a monopoly on justice and we have no option but to submit to its tyranny. Thus, anarchists say that privatized justice is the best option for maintaining a free and peaceful society. While attractive on some levels, I believe this system fails to achieve its goal.

First, it has been previously noted that Rothbard’s NAP is unproven and ultimately unworkable. Even if all agencies agreed to follow it, some will define it more broad than others. Natural law doesn’t dictate standards of crime and punishment. Imagine that a husband belongs to agency X while his wife belongs to agency Y. Agency X says that abortion is murder but agency Y says it is not. In the case of an abortion, how will they come to a mutual decision? If agency X thinks that the appropriate punishment for murder is death, why would agency Y ever agree to let their client be killed for something they don’t think is a crime? Even a private court of appeals – as a final arbiter – would not be obligated to side with the demands of either agency. Privatized justice means relative justice; relative justice means no real justice at all. At some point, the agencies will have to compromise with neither receiving the outcome they believe to be morally correct.

Secondly, God says he wants one law for citizens and sojourners in any given territory (Lev. 24:22). This certainly sounds like a monopoly, although it coincides with the biblical principle of decentralization. A biblical system would have multiple jurisdictions, each with civil rulers who apply God’s word to judicial cases. God’s law isn’t magic, however, and we’d still run the risk of magistrates abusing their authority. Yet, holding one tyrannical institution accountable is much easier than holding multiple tyrannical institutions accountable. The best option for maintaining a free and peaceful society is not to privatize justice but to Christianize justice. What does that look like, exactly? The following guidelines are a good starting point.gavel

1) God distinguishes between sins and crimes. If a command is given without an attached punishment, then it does not constitute as a civil law. It’s a moral law that you should obey but not a law that civil rulers are to regulate. For example, covetousness is a sin of the heart whereas theft is an act of aggression against another person. The civil government cannot punish people for coveting but they can punish theft.

2) Punishment for crime is based on restitution (not imprisonment) and God tells us what the appropriate punishments are. A thief is to pay back double (Ex. 22:7). This restores the victim to a higher status than before and gives the criminal the chance to rehabilitate himself to an ethical lifestyle. Murderers should receive the death penalty since the punishment must fit the crime (Deut. 19:21). Sexual crimes such as rape are also deserving of death (Deut. 22:25-27). Tax-funded prisons actually punish the victim, not the criminal. The criminal is given shelter, food, entertainment and education at the financial expense of the victim. We are supposed to pity the offended, not the offender.

3) Restitution can only be enforced if the victim presses charges. Just as God has the authority to punish or have mercy, so do we. If a crime punishable by death was committed, the victim is allowed to demand death, a lesser penalty, or nothing at all. Hosea 3:1-3 is an example where the victim of a crime punishable by death does not press charges. In Matthew 1:19 when Joseph thinks Mary has committed a crime punishable by death, he decides to simply divorce her, yet he is called “just.” The option to press charges or extend mercy belongs to the victim alone. The only crime that has to be punished is murder since the victim is no longer living to bring charges. If there is no way to restore the victim, the criminal cannot be restored either (Deut. 19:10-13).

4) If one decides to press charges, there must be at least two witnesses before someone can be convicted of a crime (Deut. 17:6). If you turn out to be a false accuser, then you receive the punishment you sought to impose on the innocent person (Deut. 19:16-19). This is a perfect safeguard from punishing someone unjustly. God’s principle of restitution is the best system for protection, freedom and peace.

Rothbard and others have spent much time thinking through the implications of a privatized system and how it might work in practice. Many of their insights are fascinating and not to be dismissed easily. But justice cannot be a product of the free market because the free market is based solely on consumer preferences. True justice is based on God’s preferences.

continue to part five

Adam McIntosh lives with his wife and daughter in Southern Illinois where he is fulfilling a pastoral internship at a local church. You may write to him here.

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10 thoughts on “Private Justice vs. Biblical Justice

  1. Mark Horne on said:

    Adam, how are politicians’ preferences any more likely to lead to God’s justice than consumer preferences?

    And I don’t think the “one law for native and sojourner” principle has much relevance.

    How is Rothbard’s scenario any more problematic from a Christian ethical standpoint than having legislatures invent laws according to majority preferences?

    I understand that we’re not supposed to be anarchists and all that. But I think private decisions lead to public good all the time. It seems to me there’s an equivocation in your headline. “Private justice” does not rule out public rules or norms. Language is public but no committee or bureaucracy creates or guides it. It just happens through spontaneous cooperation.

    • Mark, thanks for the thoughtful comment. I acknowledge that politician preferences are not anymore secure than consumer preferences. No matter what type of civil rule is in place, we always run the risk of sinful people abusing their authority. In that sense, legislatures inventing laws isn’t any different from relative justice; we practically have anarchy now. But that’s not what I’m arguing for. I want rulers to apply God’s law, not to make new ones. But it’ll take godly men to live by faith and not by sight – a goal I think will become a reality as the Gospel progresses in history. With anarchy, however, instead of dealing with one possible tyranny, you run the risk of dealing with multiple tyrannies. Anyone who can start a business can become his own judge and executioner. Not to mention that no one would have to be under authority if they didn’t want to be; just don’t take out a policy. What incentive is there for a business to provide free services to non-subscribers who get murdered in the street; or abused children who can’t participate in the market? This is why I think Leviticus 24:22 is extremely relevant. Though the immediate context is about not showing partiality, I think as a logical deduction it would rule out anarcho-capitalism. Private justice would legitimize partiality with numerous agencies ruling at their subjective whims. If God says, “one law,” there has to be an institution to uphold that. If every private agency upheld it, then there would be no point in multiple agencies to begin with.

  2. It is worth noting that some self-described Anarcho-Capitalists actually do think that private justice is very problematic. Or at least they have objections to it in the way it has been described and explained by other Anarcho-Capitalist theorists. Now, just because some of them are wary of private justice it does not mean that they somehow think there must be non-voluntary jurisdictions or the same law across all jurisdictions. Where the distinction between this and a more commons-oriented conception of justice is remains hard to determine. At least for me.

    But if one can see the distinction when it comes to defense, it is somewhat easier to see it for justice.

    Standing Army: Monopoly-oriented defense (Statism, including Minarchism)

    Comparable to this for Justice would be most of the systems in place today.

    Local Militia: Commons-oriented defense (Minarchism, Anarchism perhaps)

    Comparable to this for Justice would be the common law and some forms of Roman-inspired civil law.

    Private Firms: Market-oriented defense (Anarchism)

    Comparable to this for Justice is competing, sometimes interlocking, profit-motivated, non-territorial, subscriber-based “jurisdictions”.

    If you think about it, there already is competing justice, though it is distorted by the sheer size of it and its link to the rest of the state via the monopoly on force. If a man from, say, Australia commits a crime and flees to say, Ecuador, where perhaps the act committed was not a crime, do not the two governments have to come to some sort of arrangement, perhaps one that does not give perfect justice? Or can’t the one country refuse, for whatever reason, to allow extradition (look at the case of wikileaks founder Julian Assange), but then thereby subject itself to diplomatic ostracism, something it had considered to be worth the risk? I think something comparable could occur under private law that would make it workable, like agencies that rate private justice firms on how well they work with other firms, and indicate to potential consumers which firms are more in line with other firms or whichever norms we are talking about.

    In your case of the husband and wife subscribing to different services, firms could have contract stipulations that don’t allow its subscribers to do this without breaching the contract, or only allow it where the other firms involved are approved of by their preferred rating agency. Likewise there could be marriage covenants that forbid husband and wife being under different jurisdictions, or at least make them solely responsible for what happens if they do happen to subscribe to different services.

  3. Cyrus on said:

    That was a thoughtful critique of the An-Cap position on private justice. I was impressed that you don’t just dismiss it out of hand, as many Christians do. As a Christian myself, and a person who is continually waffling between anarchy and minarchy, I have two questions/objections, however you want to take them.

    1) I think your use of Lev. 24:22 is a little broad. In my reading that verse implies that you shouldn’t have a double standard in crime and punishment, such as the punishment for theft being restitution for locals, and cutting off a hand for foreigners. The verse doesn’t apply to jurisdictional territories, it is about legal double standards. My reading of the Bible’s rules on jurisdictional rules is that each man was under the authorities of his local tribal elders. However dispute resolution could be handled by recognized third parties from outside. For example Samuel traveled in a circuit to different parts of Israel and was received as a judge in all those places. (1 Samuel 7: 15-17)

    2) You may have dealt with elsewhere, and if so just point me in the right direction. I have never heard a robust defense for involuntary taxation from someone of your perspective. Generally, people feel content simply to show that government is justified. And then to conclude that, if said government stays withing certain limited bounds, that the money taken by force is therefore legitimately acquired. No attempt is typically made to justify the taking itself. Involuntary taxation is generally viewed in a negative light in the Bible. (1 Samuel 8: 10-18)

    • Thanks for the interaction! I agree that Lev. 24:22 is broad and your interpretation is a valid one. Perhaps I should have expounded on that more in the article. But, I do think that as a logical deduction of that principle, it would cancel out multiple judicial agencies. As I currently see it, multiple agencies within the same territory, with opposing perspectives on crime/punishment, would actually be legitimizing double standards since you’d have any number of agencies dispensing justice at their own subjective whims. In other words, using your interpretation alone, if God wants local thieves and foreign thieves to be under the same standards of punishment, there has to be an institution to uphold that. Under the An-Cap position this would be no guarantee at all. If private agencies all accepted the same law code and standards of punishment, there would be no point in having multiple agencies to begin with. And that really seems to be the point. Rothbard wants everyone to accept the NAP (which is hard to buy in and of itself), but other than the verbal recognition of the NAP, each agency would be filling in the blanks of how to actually apply it (how far does it go? is abortion an act of aggression? can parents discipline their kids? etc.) God says “one law,” anarchy says “multiple, opposing laws – and you’ll probably have to compromise your standards eventually, anyway.”

      I did write an article on taxation called “Is All Taxation Theft?” Let me know what you think!

      • Cyrus on said:

        I should pause and say that I’m not fully on board with the fully Rothbardian view of how a stateless society could work. I’m not even sure if I am an anarchist. Having said that though, we’re here to discuss that vision, so here goes!

        The fact that there would be different jurisdictions does not necessarily imply that laws would be enforced “at their own subjective whim”. Although there would be differences between the several private agencies operating within the same territory, overtime precedence would develop through adjudication on how to deal with disagreeing rules. Most of the time this disagreement would only be over the severity of the punishment. Since people wouldn’t subscribe to protective agencies that punish victimless “crimes” that they engage in, the only cross jurisdictional issues would arise would be in cases where there is an actual victim. In those cases the adjudication would proceed much as Rothbard writes, with the two persons’ agencies negotiating, and possibly employing a third party as an arbiter. Over-time, standards would emerge for dealing with disputes between members of each given agency in the area. Also, just as relatively consistent prices for the same good develop in a given area, the penalties for victim crimes would tend to level out across the different agencies.

        I’ll admit that I’m not sure of how the case of the married couple who are protected by different groups, and the abortion would be dealt with. The only thing that I can think of is that overtime the courts would establish precedence on how to deal with such issues. I’m aware that that is a weak augment. I do think however that it is the only such case. I, at least, can’t think of another such issue that would have similar problems.

  4. Pingback: Biblical Government: Anarchy, Minarchy, or Statism? | The Kuyperian Commentary

  5. Pingback: A Christian Critique of the Non-Aggression Principle | The Kuyperian Commentary

  6. Pingback: Is All Taxation Theft? | The Kuyperian Commentary

  7. Pingback: Further Reflections on Anarchy | The Kuyperian Commentary

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