A Hypothetical
Part of an ongoing discussion about libertarianism, anarchy, states, and Utopias.
A reader with the chilling name of Iceberg 18 writes: “There is no compelling evidence (in my mind) that suggests that a monopoly provider of justice is better than justice provided by competing private defense agencies.”
He asks for evidence, but I assume he means he wants to hear an argument, since there is no question of fact in dispute here, only a question of law and logic.
How would a subscription service of law and order work? I suggest the following hypothetical thought-experiment. All you law students out there, have your Prosser Torts and “In A Nutshell” ready, and take notes. There are several legal issues involved, several parties, and several claims of civil and constitutional infraction. Ready? Begin!
In one polity are two competing providers of justice.
They each have their own police, law courts, armed guards, et cetera, and they provide high and low justice. However, they are not competing Pinkerton Agencies under a single set of laws, and they are not municipalities under a federalism: they make separate laws without consulting each other. There is no common magistrate to decide between them.
To give the thought-experiment local color, let us situate it in a small but strongly walled town on the brink of Niagara Falls, a tourist spot of considerable beauty. The town’s main income is from the tourist trade. There are beautiful antique churches, graveyards, and ancient Greek ruins on a little hilltop forming the city’s citadel. Got the image in your mind?
To give the thought-experiment some drama, let us propose that across the river are the dread and dreaded Canadians of Eddore, a race immeasurably superior to man, who look with envious eyes at our walled city, and with intellects vast, cool and unsympathetic seek to flee their cold and dying country, and to take the Walled City for their own.
There are two Justice Companies. One is the Fenian Orange-Catholic Inquisitional Holy Office for the Doctrine of the Faithful. It is run by Torquemada Guy Fawkes. The other is the Neo-Nazi Black Pantha Al-Qeda Jewkilling Corporation, Lmt., run by Osama von Hitler III.
The hypo: The ex-wife of Osama, the vivacious and beautiful Jezebel Godiva has bought a protection policy from Guy Fawkes. The policy requires that, as part of the protection agreement, Jezebel be baptized in the Catholic faith.
However, before her divorce, and in her name, her husband purchased a protection policy from Al-Qeda organization, and agreed to all the provisions thereof. That policy requires that, as part of the protection agreement, Jezebel is bound by a ‘no-competition’ clause, which says that if she leaves the Shi’ite faith, she will be stoned to death as an apostate.
According to Nazi Al-Qeda law, as confirmed and passed by lawful Imam Assembly, a husband has the right to sign contracts in his wife’s name, and she is legally bound thereto. According to Orange Catholic law, as confirmed in lawful assembly by the College of Cardinals, a wife is not bound by her husband’s contracts.
Jezebel Godiva walks the streets of the town naked in order to protest the lack of unified public militia. That night Jezebel’s naked body is found murdered, apparently stoned to death on the Acropolis, at the feet of the statue of the Venus of Phideas. Furthermore, the statue has been blown to bits by the Al-Qeda on the grounds that the making of graven images is antithetical to their laws, and these stones were the ones used to murder the woman.
The statue of the Venus of Phideas is older than the surrounding town, and Phideas has been dead for two thousand years, so the ownership of the statue is in dispute. Al-Qeda law says the statue belongs to whomever first claims it, which in this case is Jezebel Godiva; Orange Catholic laws says the statue is to be treated as a commonly owned resource held in trust for the general public use. Since the town’s main trade is tourism, it is economically beneficial to all parties involved to keep the statue clean and in good order.
Under Orange Catholic law, the orphaned child of Jezebel Godiva, Daimen, is to be returned to the biological father and raised by him. Under Al-Qeda law, the child is to be wrapped in bacon and thrown into a pit of ferocious weasels. Without his wife’s permission or knowledge, Mr. Osama von Hitler III has taken out a protection policy for the child in the child’s name with the Orange Catholic justice provider group — an action which, by the laws of the Al-Qeda justice group, is not lawful, since it requires Daimen to be baptized into an non-Muslim faith.
At the scene where the body is found, the Orange Catholic police, under Lieutenant Ironhand St. James the Moorslayer, in order to preserve the evidence from being trampled by tourists, have cordoned off the area. Inside this area is a famous historical Mosque. However, a busload of tourists, one of which (a man named Thurible Sloop) has an Al-Qeda protection policy, and he demands to be let in to see the Mosque, since he paid good money to do so, and another citizen, Mr. Muezzin al Adhan, wants to climb the minaret to utter the Call to Prayer of the Faithful, which he is obligated by Al-Qeda law to do on a punctual basis. Lt. Ironhand has restrained Mr. al Adhan to prevent him from violating the cordon. Mr. al Adhan claims the arrest is false and unconscionable, and that the “Drunken Paddy Monkeys” (his words, not mine!) are merely trying to harass the Shi’ites in the exercise of their Faith. Ironhand removes the turban from Mr. Adhan in order to photograph him, which is done in every arrest situation. Mr. Adhan claims that to remove his turban during Ramadan is contrary to Al-Qeda law, and, in order to protect himself from shame, Mr. Adhan throws a shoe at Lt. Ironhand, striking him painfully in the nose. Ironhand seizes the shoe as evidence for a criminal suit accusing Adhan of assaulting an officer, and Adhan demands its return, on the grounds that Ironhad exceeded his authority as an officer, and was therefore on a frolic and detour, not acting under the color of authority granted him by the Orange Catholic police.
Meanwhile, Mrs. Vinolent O’Fferrocker, who has a policy with the Al-Qeda, has phoned the Al-Qeda police because the famous historical Catholic Cathedral (which is also on the Acropolis, abutting the same ground as the famous historical Mosque) known as Our Lady of Perpetual Holy War, is ringing its churchbells for Mass, and Mrs. O’Fferrocker complains that the noise is driving her cat Fluffbutton insane. She claims she has the right to the use and enjoyment of her own property without sounds, smells, annoyances or commotion coming over her property line and irking her cat, and the churchbells constitute exactly such an act of nuisance.
Mrs. O’ Fferrocker, it should be mentioned, was until recently held in a mental institution, known as the St. Dymphna’s Sanctuary for the Heretically Insane, and Orange Catholic medical doctors held her to be not in her right mind, and not able to make or sign contracts in her own name. According to the Catholic doctors, her husband Mr. Henpreck O’ Fferrocker has the right to sign contracts for her, and he signed her up for the Orange Catholic Protection policy.
In response to the complaint about Mrs. O’Fferrocker’s cat, the First Armored Brigade of the Al-Qeda police, under the Saudakar-lieutenant Saladin Gumbo, marches to the Cathedral carrying a petition for injunctive relief, asking the Cathedral not to ring her churchbells until such time as it is possible for a magistrate to hear the case, examine the cats, and consult the relevant law.
The deacon of the campanile, a Brother Vortigern von Slurp, refuses to honor the injunction on the grounds that the “Dirty Heathen Monkeys” (his words, not mine!) are merely trying to harass the Catholic faith—he demands that the Saladin Gumbo post a bond equal to the value of the tourist trade lost (for tourists come to hear the ringing of the bells, and the trade is one of the main sources of town income) should the magistrate find in favor of the Church. Saladin Gumbo refuses, and, as part of a lawful service of an injunction, sets a cordon around the Cathedral, forbidding any celebrants to enter.
The Chief Inquisitor, Dark Father Mordred Iguana Scissorflesh, is going to mass, as, according to Orange Catholic law, he is not only allowed to, but is required to. Saladin Gumbo refuses him entrance to the sanctuary. Scissorflesh claims that Gumbo is exceeding his authority, since the injunction only forbade the ringing of Churchbells.
At that moment, Candanian War Machines, huge metal monsters on tripod-legs taller than a church steeple and able to move faster than an express train, are seen wading across the river, flourishing their heat-rays, and raising their canisters of black smoke. However, they have not yet actually killed anyone.
The leading War Machine contains the Canadian Advocate grown in the flesh-vats of Quebec. He has in his snakelike fingers a visa issued by the Al-Qeda protection group (they believe in an ‘open borders’ policy) allowing him to enter the Walled City and become a naturalized citizen. According to Orange Catholic law, a person is allowed to bring his family with him when he enters the country.
The other operators and soldier-creatures in the remaining 81 war machines are clones, that is, twin brothers of the Advocate. Clones are recognized as ‘family members’ under Al-Qeda law and are considered abominations under Orangist law, not family members. It should also be mentioned that the Canadian Government has declared war on those citizens of the Walled City, and only on those citizens of the Walled City, who are not covered by any policies issued by either the Orange Catholics or by the Nazi Al-Qedas. The declaration of war was published in the local newspapers, and the tribune of Canada threw the ritual javelin across the river border, all according to the recognized legal formalities. The Canadians claim to have no dispute with either the Orangists nor the Al-Qedans.
At this point in time, Scissorflesh, seeing the approaching metal monsters, runs up to the belltower and rings the alarm, to alert the townsfolk. From the vantage of the belltower, Scissorflesh furthermore sees Osama von Hitler III washing his fingerprints off of his ex-wife’s dead body, removing the threatening letter bearing his signature still clutched in her dead fist, and removing other evidence tending to show his involvement with her death. Scissorflesh attempts to rush down the stairs to arrest Osama for the crime of tampering with a crime scene. However, Gumbo, who just ordered everyone out of the belltower until a magistrate could rule on the civil action for nuisance, now seeks to arrest Scissorflesh for contempt of court. Scissorflesh calls upon Guy Fawkes, who is standing conveniently close by, to arrest Gumbo for false arrest, imprisonment, and interference with his freedom to worship, not to mention impeding justice—since while they are disputing, Osama is sneaking away.
Guy Fawkes claps his hand on Osama’s shoulder and orders him to halt, since he was seen interfering with a crime scene. Osama says that the Orange Catholics had no right to cordon off the crime scene since there was no crime here—a woman walking around naked is indecent exposure, and the woman involved was an apostate, the penalty for both crimes is death, and this was lawfully executed under Al-Qeda law in a proper fashion.
Guy Fawkes says Godiva had a protection policy with the Orangists, not with the Al-Qedans, and so was not bound by those laws.
Osama claims that her policy was null and void, since under Al-Qeda law her husband has absolute authority over all contracts.
Guy Fawkes answers that the woman was divorced, therefore Osama was no longer her husband.
Osama says that since the Orange Catholic Church does not recognize divorce as legal (except in cases of incest) the Orange Catholic law should and must treat Godiva as still married to Osama, and therefore still under Al-Qeda jurisdiction.
Osama further says the case has to be decided by the Al-Qeda magistrate, which (in this case) just so happens to be him, Osama: and he made up his mind while standing here, decided that Al-Qeda law applies in this case, and therefore ergo the Orange Catholics are bound by the doctrine of Stare Decisis.
Guy Fawkes says that the case falls under Orangist administration, and has to be decided by the Orange-Catholic Legate, which, in this case, happens to be him, Guy Fawkes, who came to a decision that Orange Catholic law happens to apply in this case, whereupon the Al-Qeda is bound by the doctrine of Stare Decisis, so there!
The leading Canadian War Machine meanwhile steps over the wall, and, unlimbering a heat-ray, burns to death a Mr. Wilmer Snugbladder, who is a freerider not being protected by either protection agency. Over its blaring loudspeakers, the Advocate claims he is in the city legally, and that Mr. Sungbladder is a fugitive from Canadian justice. Since, however, there is no one government in Walled City, the Advocate has not bothered to petition any authority for the return of this fugitive. The man was covered by neither group, and so the sovereign of that nation, known as the All-Highest of Canada, ruled that Canada had no obligation to ask anyone in the Walled City permission to kill Snugbladder.
According to the laws both of the Al-Qeda protection agency and the Orange-Catholic protection agency, when the city is under attack, all able bodied men over fourteen and under forty years of age are required and obligated to go to their homes or to a public arsenal, take up weapons, and report to the town square in front of the Mosque and the Cathedral and submit themselves to the Militia Leaders, who, in this case, happen to be Mrs. O’Fferrocker and Brother Vortigern von Slurp.
Osama is under 40 and over 14 and hence is legally obligated to go to the assembly of the militia when the tocsin is rung; and Guy Fawkes attempts to impede him for obstruction of justice and a charge of murder, claiming that he, Fawkes, has the power and authority to arrest him and bring him before a magistrate. Osama, as mentioned above, is himself the chief magistrate of the Al-Qeda group, and says the case is absurd and the charges have been dismissed: he commands Guy Fawkes to release him, or he will order his men, under Saladin Gumbo, to open fire. Guy Fawkes says that the city is not legally under attack, since the Advocate of Quebec is carrying a visa and naturalization papers from the Al-Qeda group, and so Osama should stop trying to weasel out of what is coming to him as a murderer, an obstructer of justice, and someone who trespassed on a police crime scene and tampered with evidence. He says that if Osama does not shut up his pie-eating hole (His words! Not mine!) and come along quietly, he will order his men, under Ironhand St. James, to open fire.
At that same moment in time, the Militiamen under Mrs. O’Fferrocker arrive, towing the town cannon, Kabumberboom. Ironhand and Saladin Gumbo both attempt to stop her from violating their cordons. She says the town is under attack, and the only place to get a good shot at the enemy is from the belltower of the Cathedral. She orders Osama and Guy Fawkes to stop arguing, and to help her drag the cannon to the belltower. However, at that moment, Mr. Vortigern von Slurp jumps in the way and says that the discharge of the cannon in the belltower would certainly destroy the belltower, and would invite retaliation from the Canadian War Machines—the belltower is private property, says von Slurp, and the Militia are not allowed to enter to use private property according to Orange Catholic law (albeit, Al-Qeda law does allow the Militia to use any private property for public use during a public emergency).
Despite the fact that the Canadian War Machine is looming above them both, von Slurp screams at Mr. O’Fferrocker that she is merely trying to silence his bells!
Mrs. O’Fferrocker and Vortigern von Slurp immediately relieve each other of command. Under Orange Catholic law, it is lawful for one Militia leader to strip the other of command. Under Al-Qeda law, it is not. Mrs. O’Fferrocker claims to be protected by Al-Qeda law; however, Vortigern von Slurp claims that her contract with Al-Qeda is invalid, since she is legally insane and under control of her husband, who belongs to the Orangist protection group. Mrs. O’Fferrocker says that von Slurp’s attempt to interfere with her command in wartime is treason, and she orders Fluffbutton the cat to eat von Slurp alive, starting with his toes. (It should be mentioned that the cat ignores this order and washes itself.)
At the same time, the Canadian War Machine bellows over its loudspeakers that the man they burned to death was not after all Mr. Wilmer Snugbladder, but Mr. Oregano de la Wankh who looks a lot like him. (Mr. de la Wankh wisely purchased protection policies from both justice providers, who are jointly and severally obligated to retaliate his untimely death.)
Sorry for the mistake (the War Machine continues to bellow), but the War Machines will now begin burning the town house by house until Mr. Snugbladder is yielded up to him.
At one and the same moment, Osama shouts defiance towards the Canadians, saying that the Walled City will defend herself from invasion to the last bullet and the last man, and Guy Fawkes screams that the City would very much like to surrender, and would be more than happy to deliver Mr. Snugbladder to the merciless and inhuman justice of the Canadians.
Over the loudspeaker, the Canadian Advocate shouts “Surrender now or prepare to fight! Well, which is it to be, Flesh Slugs?” (His words! Not Mine!)
Guy Fawkes orders Ironhand St.James the Moorslayer to open fire on Osama.
Osama orders Saladin Gumbo to open fire on Guy Fawkes.
Mrs. O’Fferrocker, as the militia leader, declares martial law to be in effect, and orders Ironhand St. James the Moorslayer and Saladin Gumbo to open fire on the Canadian War Machine, and not to obey the orders of their superiors.
She orders Vortigern von Slurp to get out of the way and orders the guncrew to climb the belltower and open fire on the War Machine.
Guy Fawkes says that since the town has surrendered, he does not want Mrs. O’Fferrocker (who was certified as insane, you recall) to protect him or anyone under his protection: that since the war is over, the militia must disband.
Osama orders Mrs. O’Fferrocker to arrest Guy Fawkes since, by attempting to surrender to the Canadians, he is aiding the enemy in time of war, and is therefore a traitor—by Al-Qeda law, the penalty for this, as for every other infraction of the law, is death.
Now here are the questions for legal scholars out there:
1. Under this scenario, does Thurible Sloop have a right to recover the price of his bus ticket from the tourguide company, on the ground that Ironhand St. James the Moorslayer prevented the busload of tourists from entering the grounds of the Mosque?
2. If Al-Qeda law allowed Mr. Sloop to recover, but Orange-Catholic law did not, and if the tourguide company was protected by the Al-Qeda policy, what happens if the tourguide company refuses to pay, and when Saladin Gumbo and his men come to seize tourguide company property in lieu of payment, the tourguide company quickly buys an Orange-Catholic policy, and asks Ironhand St. James the Moorslayer and his police to stop the Al-Qeda police? Who is in the right in that scenario?
3. Who has legal authority to give orders to the Militia, to declare war, and to negotiate a surrender?
4. Who has possession of Daimen the Orphan?
5. Can Mr. al Adhan sue for the recovery of his shoe, plus damages equal to the value of the loss of the use and enjoyment of the shoe during the time said shoe was unlawfully detained by Ironhand? If so, is Ironhand personally liable, or, under the theory of agency, is the Orange Catholic Justice provider liable? (HINT: this question turns on which actions of Ironhand are under color of his authority, that is, when he was acting as an agent of the police, and which actions of Ironhand are private actions for which he alone is responsible.)
Closing remarks:
Please do not raise the objection that this scenario is too farfetched ever to happen. In real life we just had a terrorist bomber ignite a bomb in his underwear on Christmas Day, burning off his dick, and a Dutch tourist jumped over four intervening seats to clock the dickless guy, and the administration decided to yank him away from military interrogators and to read him his Miranda Rights, and put him into the civilian trial system. If you think anything I have made up here is more farfetched than that, I cannot agree with the judgment. All I have supposed here is that different judicial systems would have different laws.
Please do not raise the objection that a system of private justice can work in all cases where no conflict of laws arises. Such cases are rare. Even in the United States, which shares a common law and language and legal tradition, the several states have different statues concerning police procedure and civil suits.
If a system of competitive private justice can only work in a limited number of cases, it cannot work, since the law must deal with all cases, not just the convenient ones.
Please do not raise the objection that a system of competitive private justice would or should only adhere to the kinds of laws libertarians and anarchists admire and like, and therefore my scenario must be ruled out on the grounds that there would be no statues of Venus that are not public property, no rivers that form boundaries between states, and no foreign states with no invaders; please do not raise the objection that my scenario must be ruled out on the grounds that the Muslims in Utopia would be happy to live in cities were women can walk around naked, and that the Catholics in Utopia would be happy to live in cities where divorce is legal. If a prerequisite for a libertarian or anarchist commonwealth is that all citizens thereof must be without religion or strong conviction, or must all be sane and honest, or must none of them own cats, then away with your nonsense and back to Cloudcuckooland with you! Real governments can make provision for real people to live together in mutually tolerant distaste for each other, keeping the peace most of the time, and respecting each others’ rights most of the time.
In sum, I submit that the concept of competitive private justice is fatally flawed at its root, due to an inability of the providers of justice to provide justice for themselves. Who watches the watchmen? Unlike separate nation states, who can agree to in mutually tolerant distaste respect each others’ boundaries, competitive Justice Providers would face inevitable conflicts of interest that, by the very nature of the competition, would leave them with no recourse except the last argument of kings, that is, open war.
There is no common magistrate both parties recognize as valid. There is no higher federal authority to settle a dispute about conflict of law, as there is in the Unites States. There is nothing but the hope that men of different groups will act not as men in the real world have ever acted, but will forswear their private interest for the sake of the public weal.
To pile Ossa atop Aetna, the concept of providing private justice assumes at the outset that there is no public weal, no public property, no unity of interests to safeguard, merely a collection of atomized sovereign individuals who contemplate making an alliance with each other to their mutual advantage. The idea that there are communities, with morals and customs, that have conflicts of interest, or that there are mutual dangers, such as foreign invaders, such as the loss of public trade, such as the loss of public monuments, requiring common response, is merely an idea inadequately addressed, or not at all, by libertarian and anarchist writing. The common tactic is to dismiss all public concerns as a sinister excuse to trample the rights of others.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
