Courts & Justice system in Libertarianism

johnnyskeleton

Since one of the purported beliefs of libertarians is that government should only provide a basic army and sufficent means to enforce property laws and contracts etc, what sort of a courts and justice system would exist?

For example, would legal aid be available or would everyone have to defend themselves?

What level of police would be provided for? Should there be private prosecutions and if so, should the unsuccessful party pay?

Would constitutional rights as against the state be justiciable? Would, indeed, any further encroachment into the economic sphere by the government e.g. if they provided basic road maintenance be actionable in the courts? Would a person charged with a criminal offence be entitled to the same rights of a fair trial as they are currently?

What about violent or sexual crimes? What about the legal/illegalisation of certain substances and behaviours? Would guns be legal and unregulated?

What about tortious behaviour (i.e. civil wrongs), can you sue for personal injury?

Is there any method by which a small firm can be guaranteed a fair hearing against a big firm which has stolen their property (bearing in mind that all the big lawyers can be bought up by the big firm)?

Would the courts have a system of paying for themselves e.g. each party pays a contribution to the judge's wages, sort of like current arbitration issues?

What about family law, would the idea of a family, divorce, child maintenance and custody revert to a matter of whatever people agree amongst themselves?

What about child protection? Could social workers intervene where a child is being neglected/sexually abused?

Would there be any equality legislation to prevent people from being discriminated against?

Would competition law, copyright and patents law and passing off feature in commerical cases or would it just be fair game for everyone?

In land law, do planning restrictions apply or can someone build a skyscraper next to my house blocking out the sun to my garden?

What enforcement powers would the courts have, other than imprisoning someone for failing to comply with a court order?

Would the press be completely free to say whatever they like, whenever they like, or would defamation law remain intact?

How does immigration law work? Would there even be any restrictions on entry/exit to the country?

What level of dishonest behaviour would amount to a criminal offence? Would snake oil salesmen be criminals, or would they merely be good salesmen who sold to people who should have known better?

If someone wanted to complain about e.g. noise pollution, drunken behaviour etc, what remedies would be open to them?

I'm curious to see just how far libertarians are prepared to pare back our legal system. The courts provide an effective remedy for many wrongs, and also allow a happy (or more often unhappy) compromise to be reached between competing interests. How much of what the courts currently do is contrary to Libertarian thought?

pagancornflake

Nice topic for a thread. When I ask about libertarianism and law, I am (in most cases) directed toward polycentric legal theory. I dont know a huge amount about polycentric law, having only read a few 90's articles by John Bell on the topic, but from what I understand, it entails a complete decentralization of legal jurisdiction. In a libertarian legal philosophy, I would presume that this would result in people voluntarily opting to observe and benefit from a given regions local jurisdiction.

This is probably a gross oversimplification, so someone more versed in it might explain it better.

Having said all this, it wouldn't be for me, I think the central concensus based-jurisdiction works best.

Slouch

For example, would legal aid be available or would everyone have to defend themselves?

It depends on the school. Some anarcho-capitalists do object to any form of statutory law whatsoever, believing that society can be managed by an individuals adherence to natural law. However, this is a pretty extreme position. Murray Rothbard supported a mutually agreed upon centralised legal code. The voluntaryist school supports a people coming together on a voluntary (What no way!) basis to enforce necessary laws, such as property rights (which they see as natural law in itself). More moderate types of libertarianism can be summed up in that Lockean mantra of limiting government to the protection of life, liberty and property.

What level of police would be provided for? Should there be private prosecutions and if so, should the unsuccessful party pay?

Some libertarians would believe in a voluntary approach to policing, but most right libertarians I know would preserve the police system, as it is necessary for the protection of private property. It's normally one of the key things setting them apart from anarchism.

Would constitutional rights as against the state be justiciable? Would, indeed, any further encroachment into the economic sphere by the government e.g. if they provided basic road maintenance be actionable in the courts? Would a person charged with a criminal offence be entitled to the same rights of a fair trial as they are currently?

A lot of questions here. Perhaps you should define 'against the state'. Speaking out against the state would obviously be allowed under any school. Under anarcho-capitalism, there would be no state. Moderate libertarians probably would no approve of selling arms to the enemy at times of war though. As far as road maintenance is concerned, it would be in the interest of business to maintain a working supply line. There is reason to suppose the market would take care of it (people would set up their own road maintenance companies for a profit). Paying for it with taxes wouldn't be necessary. In most schools of though, the right to a fair trial would still exist, except in those anarcho-capitalist cases where natural law is considered preferable to any form of centralised legal system.

What about violent or sexual crimes? What about the legal/illegalisation of certain substances and behaviours? Would guns be legal and unregulated?

Any school of libertarianism (left or right) holds self-ownership to be imperative. You own your own body. Therefore sexual crimes cannot be allowed and illegalising such acts is both protection of liberty and property. Generally, drugs are legal in libertarianism. Some would probably draw a line at Grade A drugs, but i've never heard of a libertarian being opposed to cannabis or mild drugs. if you choose to buy them it's ultimately your choice.

What about tortious behaviour (i.e. civil wrongs), can you sue for personal injury?

The answer is yes in about 90% of schools. If you are injured financially it is a question of infringing upon your liberty and property. Physical injury is an endangerment of your life. It's covered in the basic mantra mentioned above. Those anarcho-capitalist schools advocating the supremacy of natural law believe that one should ask if one is aggressing against another in order to discern whether an act is right or wrong. Presumably, it is enforced by this mutually agreed upon morality in those cases.

Is there any method by which a small firm can be guaranteed a fair hearing against a big firm which has stolen their property (bearing in mind that all the big lawyers can be bought up by the big firm)?

This is a good question. The thing here is that the the big firm is actually guilty of stealing private property. It would be an incredibly hard case to make for the big firm, regardless of its lawyers. If the legal system is entirely voluntary, it's supposedly easy to get a lawyer with a conscience to act on your behalf. Some libertarians would probably allow for state provided lawyers based on the principle of protecting private property, but I doubt it's the case with most.

Would the courts have a system of paying for themselves e.g. each party pays a contribution to the judge's wages, sort of like current arbitration issues?

Nope. Not if its coercively enforced anyway, unless it's a form of libertarianism so moderate it's only vaguely different from the status quo. People may donate to the judiciary on a voluntary basis, but that's about it.

What about family law, would the idea of a family, divorce, child maintenance and custody revert to a matter of whatever people agree amongst themselves?

Most likely, yes. Child custody is the only one that might cause some split in the movement (where the child ends up staying with an abusive parent or something).

What about child protection? Could social workers intervene where a child is being neglected/sexually abused?

Well, saw this on coming . It's an infringement on the child's life and liberty, so yes. The question is whether social services would still be a state-owned entity.

Would there be any equality legislation to prevent people from being discriminated against?

Can people refuse to let people on their private property because of the colour of their skin? Yes. Can people abuse people with ethnic slurs? Yes. Can they infringe on the actual freedom of people they detest in public areas? No.

Would competition law, copyright and patents law and passing off feature in commerical cases or would it just be fair game for everyone?

Copyright and patents would probably feature, as well as intellectual property I presume, as they can be seen as a form of protecting private property. But in a few schools it would be fair game, yes.

In land law, do planning restrictions apply or can someone build a skyscraper next to my house blocking out the sun to my garden?

If it's not on your property, yes. I believe tha majority of libertarians are openly opposed to 'planning permission'

What enforcement powers would the courts have, other than imprisoning someone for failing to comply with a court order?

Fining them, placing them under house arrest, revoking certain privileges for a set period of time. Could you be more specific on this one?

Would the press be completely free to say whatever they like, whenever they like, or would defamation law remain intact?

Free to say whatever they like

How does immigration law work? Would there even be any restrictions on entry/exit to the country?

There would likely be SOME restrictions (such as background checks for criminal records and so forth), but the free circulation of labour should be as unrestricted as is reasonably possible.

What level of dishonest behaviour would amount to a criminal offence? Would snake oil salesmen be criminals, or would they merely be good salesmen who sold to people who should have known better?

The latter

If someone wanted to complain about e.g. noise pollution, drunken behaviour etc, what remedies would be open to them?

Competitively cheap ear muffs. Depends on the drunken behaviour in the latter case. Does it really qualify as an infringement on liberty?

I'm curious to see just how far libertarians are prepared to pare back our legal system. The courts provide an effective remedy for many wrongs, and also allow a happy (or more often unhappy) compromise to be reached between competing interests. How much of what the courts currently do is contrary to Libertarian thought?

Enforcing laws that limit free speech for one. Here's a quote: "The government should be required "to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.'"



Largely my opinion, but I hope it was of some use.

johnnyskeleton

Thanks Slouch, that's very helpful, although it does raise a few issues of concern.

For example, property is not always as clear cut as it may seem. In the planning permission case, I not only own my land, but I also have rights to have sunlight reach my land, as part of my quiet enjoyment of private property. Capitalism recognises this balance between various private property owner's rights, but it would seem that Libertarianism is a bit more of a free for all.

It is also quite worrying that the state could not intervene in child neglect on the basis that it interferes with liberty. All rights are someone's liberty, and state intervention is not some evil device to restrict liberty arbitrarily, but rather to balance rights between different parties.

While I do think the level of state involvement has become a bit much in modern Ireland, i think Libertarianism is far too idealistic in how far it would go.

But you have given me a few thoughts about their views on the legal system.

Slouch

Well, I had a look into this question and came across this article.
http://theuklibertarian.com/2010/02/06/planning-permission-is-bull****/

I found this view expressed by one of the commentators:

"Now, you can build on your property so long as you don’t infringe on the property rights of others. Pollution that spills onto a neighbours property is definitely a property rights violation and I would argue Noise is certainly a form of pollution if it infringes on your ability to sleep, or enjoy your life."

I also found a libertarian case against intellectual property here:

http://libertariannation.org/a/f31l1.html

A broad libertarian consensus doesn't really exist outside limiting the powers of government, and that's really in the spirit of the movement anyway .