A powerful objection to anarcho-capitalism is that judges, acting in their self-interest, will simply rule in favor of the highest bidder. This is the objection I will attempt to address, and in so doing, come up with a theory of how and why justice will be served and property protected in an anarcho-capitalist country.
In order to discover the functioning of judges in anarcho-capitalism, one must start from the beginning. Some, if not most, people desire their property to be protected. These people will be willing to exchange their goods or services for this protection, leading to the formation of private defense agencies, which would act as a private police force. We already have a situation where government police have gotten so bad that people are turning to various forms of private policing: bodyguards, security systems, and security guards. These private defense agencies (from here on referenced as PDAs) will tend to provide the most security at the least cost (the exact opposite of government police), and their reputation will be of the utmost importance; if they got a reputation for either protecting criminals or poorly defending their customers, the customers would patronize a different agency. It is also in their interest not to protect criminals from prosecution because doing so would lead to more crime — something that would drive up their costs and lose them customers to agencies that actually protect people. A PDA will not only be wanted to defend people while an act of aggression is occurring, but will also be desired to exact restitution, which means that an equal amount of force that the aggressor used against his victim can be justified by the victim against the aggressor. Take, for example, the case of a theft. A takes $5 from B. According to libertarian theory, B can defend his property by taking his $5 back from A and he is justified in taking an additional $5 of A’s money, along with the cost of the time it took to get this money and the expense it took to get it. In order for a PDA to maintain an excellent reputation and to ensure that it will not get into any battles with other defense agencies (which would be very costly), the PDA would make sure that a person accused of a crime actually committed that crime, and that the amount of restitution to be exacted is just. This is the role of judges — the difficult job of proving to everyone that either a person accused of a crime is guilty or innocent, and what a just compensation to the victim (if there is one) is. Judges would compete with each other in terms of their reputation for producing thorough and convincing judgements, and would lose customers for providing poor or corrupt judgements (which, if obvious that the judge was corrupt, or had judged wrong, would be considered invalid and ignored). The purpose of judges is not to provide justification for the use of force, but only to demonstrate that a use of force is, in fact, justified (or not). Whether a judge worked for a PDA or had a private practice or belonged to a judging company (private court) would be immaterial. In order to demonstrate fairness, a process of appeals could exist and may work like this: A accuses B of committing a crime, then the judge of A’s choosing either rules B innocent, in which case the process ends, or the judge rules B guilty, in which case B could appeal to a second judge. If the second judge rules B guilty, the process ends, but if the second judge rules B innocent, A could appeal to a third and final judge that is agreed upon by both the first and second judge, or both A and B. The cost of the judging service would go to the loser of the court case, which would mean that if someone is obviously guilty or innocent, the person who is going to lose the case would not want to increase his or her costs by appealing a judge’s (clearly correct) decision. Of course, if someone was undisputedly guilty and the restitution owed was undeniable, a judge would not be necessary. I have thus sketched a rough outline of how anarcho-captialistic police and courts could work, and will go on to address a few objections.
A common objection to anarcho-capitalisim made by minarchists (small-state libertarians) is that “justice” is some kind of a public good and no one has a desire to produce it while everyone wants it, so it must be provided by a government. This assumes that public goods exist, and that they should be provided by a legitimized institution with a monopoly on the use of force, or, in other words, a state. The theory of public goods have been demonstrated false in this article by Hans-Hermann Hoppe, this article by Walter Block, and this article by Randall G. Holcombe. Furthermore, as I demonstrated above, it is in everyone’s self-interest to both enforce and obey the non-aggression principle, and both police and courts could be provided on the free market.
Another objection goes like this: all this is well and good for customers of PDAs, but what about the provision of justice between individuals not belonging to PDAs? Wouldn’t conflicts between non-customers of PDAs simply devolve into fights to the death? I can answer this in two different ways; first, I could say that if you don’t pay for justice, why would you expect to receive it — it’s like any other service! Second, I don’t think that this would be the case because 1) anyone who wanted to could arm themselves with weapons, discouraging anyone from committing acts of aggression against each other, and would allow for individuals to enforce justice even without a PDA, and 2) people who were criminals or were thought to be criminals would be ostracized; in the interest of keeping themselves and their friends/family/customers safe, people would forbid those whom they thought were criminals from entering their property. As a side note, there would probably be very expensive and very secure stores and housing that would be specifically for blacklisted criminals. Therefore, if you don’t belong to a PDA and someone aggresses against you, you still would charge the aggressor in a court instead of just showing up at his house with guns, taking back your property and taking some of his money, because you wouldn’t want the public to believe that when you were enforcing justice you were acting as an aggressor. So yes, in an anarcho-capitalist country, you could provide your own protection, but would still usually make use of courts. Also, I think that the wide availability of weapons, ostracism, and the relative absence of poverty under anacho-capitalism would be very effective at discouraging crime from occurring.
A further objection is that a PDA would simply take over and become the government. Even if this were the case, and I think that this would be very unlikely to happen, then we would be in the exact same situation that we’re in now, so we have nothing to lose! The thing to keep in mind here is that under anarcho-captialism, there is no legitimized institution with a monopoly on force, and that any prospective government would inevitably have to convince the populace that it is in their interest to have a government. The reason for this is not readily apparent, but is the case; if the government is not legitimate in the eyes of most of the people, then people will tend to defend themselves from that government because it is in their interest to do so. The government can only use the resources that come from the populace, but if the source of those resources, the productive citizenry, are mobilizing those resources to defend against that state, then that government will not be able to continue in its existence. It can either kill everyone, and lose all its funding, or it can battle everyone and eventually lose, expending all of its remaining resources to survive. The reason for this is as follows: the state expends resources on suppressing a revolt, but can’t get those resources back because the very resources they want to take are being utilized to resist them. This leads to the state having decreasing funds which are consumed in its bureaucracy and in the course of fighting a war on its people, while the productive populace keeps on producing funds and resources with which to defeat the state. Note that this only works if the vast majority reject the state in favor of anarcho-capitalism. This is the reason that it would be unlikely but not impossible for a state to arise out of anarcho-capitalism; only if someone were to come along and convince the bulk of the people that they would benefit from a government, which, under anarcho-capitalism, would be almost impossible to do for the obvious reason that a state is not beneficial, and the people would be experiencing that fact first-hand.
In conclusion, the state is not necessary for the provision of justice, and, being the monopoly that it is, has no reason to provide the best service at the lowest cost like the private courts and PDAs in anarcho-captialism, but to provide the least service at the highest cost. Furthermore, the state is inherently immoral, and therefore should not exist. Any question as to how a society would function without one is a purely technical question and is not relevent to the question of whether or not the state should exist. However, as I have written above, society would (surprise surprise) be much better off (and have a better provision of justice) without a state and with a purely voluntary method of protection.
Further Reading
The Market for Liberty For a New Liberty: The Libertarian Manifesto