What Would Free Market Justice Look Like?

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Column by Paul Bonneau.

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I was reading a chapter of Jim Corbett’s My India, when I ran into an illuminating clue about the range of possible judicial solutions where freedom exists. Most people seem to imagine free market justice working more or less like our current system, just better and cheaper and more fair. But would it actually look anything like that?
 
To get an idea what I’m getting at here, consider homeschooling. At first, people tend to recreate “school at home,” using the same sorts of props and methods that are used in government schools. But after a while this has morphed, for many homeschoolers, into something utterly different than government schooling, that proponents call “unschooling.” It’s so different that many not familiar with homeschooling do not even recognize it as education (although we should not worry too much about that, since these same people are beguiled into thinking that indoctrination is education).
 
Might not the same thing occur with a free market justice system?
 
About 29% into Corbett’s book (in Kindle format), there is a chapter called “Pre-Red Tape Days.” He describes a local part of the British Raj in India, where a single well-respected individual wore many administrative hats and was responsible for a huge area:
 
"Ramsay, in addition to being judge of Kumaon, was also magistrate, policeman, forest officer, and engineer, and as his duties were manifold and onerous he performed many of them while walking from one camp to another. It was his custom while on these long walks, and while accompanied by a crowd of people, to try all his civil and criminal cases. The complainant and his witnesses were first heard, and then the defendant and his witnesses, and after due deliberation, Ramsay would pronounce judgment, which might be either a fine or a sentence to imprisonment. In no case was his judgment questioned, nor did any man whom he had sentenced to a fine or imprisonment fail to pay the fine into the Government Treasury or fail to report himself at the nearest jail to carry out the term of simple or rigorous imprisonment to which Ramsay had sentenced him....
 
The first petition came from the headsman of a village adjoining Boksar. It appeared that this village and Boksar had a joint irrigation channel that served both villages, and that ran through Boksar. Owing to the partial failure of the monsoon rains, the water in the channel had not been sufficient for both villages, and Boksar had used it all...."
 
Corbett goes on to describe some cases, including marital disputes, that Ramsay settles to the satisfaction of all.
 
By now some must be wondering if I have lost my mind. What after all, does the British Raj have to do with freedom? To answer, we continue Corbett’s narrative:
 
"While touring his domain, Anderson and his predecessors in pre-red-tape days settled to the mutual satisfaction of all concerned hundreds, nay thousands, of cases similar to these, without the contestants being put to one pice of expense. Now, since the introduction of red tape, these cases are taken to courts of law where both the complainant and the defendant are bled white, and where seeds of discontent are sown that inevitably lead to more and more court cases, to the enrichment of the legal profession and the ruin of the poor, simple, honest, hardworking peasantry."
 
Now, perhaps you catch my drift. Really what we have here, in pre-red-tape days, was simply a man who was respected by all for his wisdom and fairness. The fact of his being part of the British Raj is probably beside the point. Another similar example might be that of a chief of an American Indian tribe; tribal members were not forced to follow anyone at all, and there were no elections for chief, either. It’s just that people naturally recognize and defer to the wisest and most virtuous among them, and seek them out for resolution of conflicts.
 
If you think about it, this is not too far from the binding arbitration that some imagine a free market justice system might look like, except that instead of 3 respected individuals, there is only one. There doesn’t seem to be much need for most of the trappings of what passes for justice today, nor the expense. Who needs an institution, after all, when individuals can do the job?
 
Justice in a free world may in fact look nothing at all like what we have now. It might instead look more like what satisfied poor people in backwater areas of India had, a hundred years ago.
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Paul Bonneau's picture
Columns on STR: 79
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mhstahl's picture

Paul,

Why not look to the justice system as observed in existent non-state societies? Max Gluckman referred to the complex system observed amongst African and South American tribal groups as "Peace in the Feud" -http://past.oxfordjournals.org/content/8/1/1.extract

The concept is similar to von Notten's observations of contemporary rural Somalia in "Law of the Somali's".

This system also doubtless predates the written system of Wer and Bot in early Anglo-saxon England-where, by the way, redress of grievance through feud was acceptable, even officially despite a rudimentary government.

I believe that I've read examples of this sort of organization in rural India, and certainly Pakistan, as well-though at the moment I can't recall the source.

I would suggest in your example that this man "who was respected by all for his wisdom and fairness." is such in part at least because he is part of the Raj. Also, while Corbet certainly has a point about red-tape bleeding all involved white(by intent, by the way if we look to history), I wonder if he saw, or was aware of cases where that "fairness and wisdom" failed and the parties involved disagreed with the outcome?

The biggest question, it seems to me, in evaluating a system of redressing grievance is who has the ability to bring overwhelming force to the table-in this case, as in "red tape" justice, it is the Raj without question. At least officially. Without that central authority, everything becomes much more fluid, and much more interesting.

Without a central adjudicator able to muster such force, then it is the balance of force between the two parties and their protective groups(families, friends, and potentially others depending upon local custom) to ensure that the matter is resolved-depending of course on local custom as well, there is little predictability in this system.

I recommend Gluckman's work highly, along with Sahlins(referenced frequently by someone else here) if you want to really explore the interaction of humans without "red-tape".

I enjoyed the article, thanks!

Paul's picture

"The biggest question, it seems to me, in evaluating a system of redressing grievance is who has the ability to bring overwhelming force to the table-in this case, as in "red tape" justice, it is the Raj without question."

Sorry, that's not so. I did not paint the picture correctly for you to understand. This really is backwater India. There are NO ROADS. There are merely footpaths from one village to the next. It takes days of walking just to get back there. Do you think the Raj was going to dispatch a squadron of helmeted goons because a couple with a marital dispute do not take Ramsay's advice? No. They were barely able to keep the railroads functioning at all, down in the lowlands (in another story in that book, Corbett works on the railroad for a time under insane conditions).

Ramsay is respected in part because his solutions are sensible, in part because he is an authority. But authority does not have to derive from violence; Einstein was an authority in physics. So the Raj is mostly beside the point in this picture.

I don't deny there may be better examples out there. This just happens to be one I'm familiar with because I am a big fan of Corbett's books.