анонимный вопрос
Since anarcho-capitalism does not emerge through social engineering, it is obviously pointless to make promises in the vein of “once ancap is established, all courts will operate according to these rules we have set.” We can show how courts operated in historical stateless societies, how they operate now in the non-state sphere, and how they could be organized if the state were consciously outgrown.
The issue of historical non-state legal systems is studied in detail in the book by David Friedman and Peter Leeson Legal systems very different from ours. Someday I will work on its translation, but for now, one can see from the table of contents alone just how many different legal systems existed that did not require state intervention in their operation.
What functions should a legal system perform?
- A system of landmarks. With a legal system in place, people can plan their actions, knowing what the procedure should be in the event of a conflict.
- Conflict freezing mechanisms. If a conflict occurs, it can always be attempted to be solved by direct force. The presence of a legal system, however, allows for the start of a conflict resolution procedure instead of an immediate fight. For example, summoning the opponent to court, to a duel, or giving them the business card of one’s insurance agent. The faster a lawsuit is initiated, the less damage will be caused, and the cheaper the process will be.
- Mechanisms for determining parties in court. A legal system can determine whether a person must defend their interests in court personally, whether they can be replaced by a representative, organize a class action, and so on.
- Restrictions on investigative methods. A legal system determines which evidence is considered valid (for example, a blockchain record) and which the court must ignore (for example, testimony given under torture).
- Procedure for choosing a judge. A legal system may require that both parties explicitly agree on the figure of the judge (arbitration), or it may prescribe a specific rigid procedure for applying to a pre-known court (for example, at the place where the conflict arose).
- Limitation of judicial powers. A judge may have the right to conduct an investigation, or may be required only to consider the evidence provided by the parties. He may have the right to summon witnesses under threat of sanctions, or may be limited to voluntary cooperation.
- Limitation of sentencing variability. The more predictable the outcomes of the proceedings, the lower the costs society members bear from uncertainty. Therefore, a legal system usually includes a certain schedule of penalties rather than leaving such things entirely to the discretion of the judge.
- Sentence enforcement system. A legal system may assume that both parties deposit funds in advance to secure possible compensation for a claim, may assume that the plaintiff collects the court-awarded amount independently, or may, for example, provide a system of coercion to execute sentences (for ancap, i.e., a society with an even distribution of the balance of violence potential, such coercion can only be non-violent).
Under ancap, various market agents can provide either a full range of legal services or individual specialized services. For example, a detective agency may provide only the search for evidence for court, a collection service only ensure recovery, a law firm represent the client’s interests in court, and the court itself organize the proceedings and issue decisions according to a pre-agreed legal system.
The development of legal systems is an evolutionary process, and it is impossible to predict in advance which solutions will be in demand in the market and which will not. Whether legal systems will be created by individual authoritative lawyers, consortia of legal service providers, or borrowed directly from existing systems is also impossible to predict.
More detailed information on the mechanisms of interaction between different elements of the legal system under ancap can be read in David Friedman’s book The Machinery of Freedom, chapter Police, Courts, and Laws in a Free Market.
