In Anarchy, State and Utopia, Robert Nozick formulates what he thinks is a successful argument against Anarchist courts. I debunk this argument in my own book But Who Would Build the Roads. I thought it would be valuable to reprint this debunking, because Nozick’s argument is fairly popular and carries a lot of weight with minarchists. Unfortunately, I lost the text of my book, so I can’t reproduce that section here. Instead, I am going to argue against the passage afresh (all errors in transcription mine).
THE DOMINANT PROTECTIVE ASSOCIATION
Initially, several different protective associations or companies will offer their services in the same geographical area. What will occur when there is a conflict between clients of different agencies? Things are relatively simple if the agencies reach the same decision about the disposition of the case, (Though each might want to exact the penalty.) But what happens if they reach different decisions as to the merits of the case, and one agency attempts to protect its client while the other is attempting to punish him or make him pay compensation? Only three possibilities are worth considering:
1. In such situations the forces of the two agencies do battle. One of the agencies always wins such battles. Since the clients of the losing agency are ill protected in conflicts with clients of the winning agency, they leave their agency to do business with the winner.
2. One agency has its power centered in one geographical area, the other in another. Each wins the battles fought close to its center of power, with some gradient being established. People who deal with one agency but live under the power of another either move close to their agency’s home headquarters or shift their patronage to the other protective agency. (The border is about as conflictful as one between states.)
In neither of these two cases does there remain very much geographical interspersal. Only one protective agency operates over a given geographical area.
3. The two agencies fight evenly and often. They win and lose about equally, and their interspersed members have frequent dealings and disputes with each other. Or perhaps without fighting or after only a few skirmishes the agencies realize that such battling will occur continually in the absence of preventive measures. In any case, to avoid frequent, costly, and wasteful battles the two agencies, perhaps through their executives, agree to resolve peacefully those cases about which they reach differing judgments. They agree to set up, and abide by the decisions of, some third judge or court to which they can turn when their respective judgments differ. (Or they might establish rules determining which agency has jurisdiction under which circumstances.) Thus emerges a system of appeals courts and agreed upon rules about jurisdiction and the conflict of laws. Though different agencies operate, there is one unified federal judicial system of which they all are components.
In each of these cases, almost all of the persons in a geographical area are under some common system that judges between their competing claims and enforces their rights. Out of anarchy, pressed by spontaneous groupings, mutual-protection associations, division of labor, market pressures, economies of scale, and rational self-interest there arises something very much resembling a minimal state or a group of geographically distinct minimal states. Why is this market different from all other markets? Why would a virtual monopoly arise in this market without the government intervention that elsewhere creates and maintains it? The worth of the product purchased, protection against others, is relative: it depends upon how strong the others are. Yet unlike other goods that are comparatively evaluated, maximal competing protective services cannot coexist; the nature of the service brings different agencies not only in competition for customers’ patronage, but also in violent conflict with each other.
I think it should be obvious by now that what Nozick describes has strictly nothing to do with Anarchism. This is the “Mad Max” version of “Anarchism” where people are shooting each other in the streets in the name of a court verdict (a phenomenon we observe in States, oddly enough).
The funny thing is that Nozick’s “Mad Max” version of Anarchism is inherently capitalistic and imperialistic, thus not Anarchist in any sense or form. Corporations do hire armed militias and kill those who oppose them, but not Anarchist organizations.
The idea that Anarchist communities are going to start shooting each other because they disagree about a verdict over a stolen pair of shoes is ludicrous. The whole point of Anarchism is that we recognize that everyone has different desires for their lives, and that a State, by imposing one ruleset on everyone, goes against people’s free will. The natural Anarchist reaction to disagreements is to let others be free to disagree unless the other party is preventing other people from being free. Cases like, say, a stringent religious community living in the middle of an Anarchist territory are admittedly limit cases, but this is not what we’re talking about here.
There is another major issue with Nozick’s basic premises, and that is the concept of a non-hierarchical government. Since we are talking about Anarchist courts, we must necessarily be talking about non-hierarchical courts. Now I grant that the definition of government is a monopoly of force over a given territory, but I don’t think a non-hierarchical system would ever be confused with a government, even if it claims a monopoly of force over a territory, any more than a non-hierarchical firm would be confused with a corporation or a non-hierarchical “free skool” would be confused with an actual school.
The basic structure of a government is that of the imposition of a ruleset on the whole of society, in top-down fashion, with factions fighting over parts of this ruleset. In all governments, the local power elite, or simply those who have the most money and power regardless of whether they are in a coherent group or not, will always have a strong advantage, the strength of which depends on inequality within that society. In the United States of the past century up to today, for instance, the power elite has won every single political battle (see the book Who Rules America? for more data).
Since the goal of Anarchism is the exact opposite of this process, it seems silly to qualify an Anarchist court as a government, even if it is technically correct. Instead of imposing a ruleset on society in a top-down manner, the goal instead would be for people to cooperate with each other in creating rulesets (as many as necessary) which further their common interests, in a bottom-up manner.
Nozick’s reasoning also assumes that agencies must compete for customers, and that their success solely depends on that factor. For an Anarchist scenario, this is rather strange. Again we come back to the fact that this is a “Mad Max” version of Anarchism, but with exchanges still being made and controlled somehow.
It’s really hard to argue against something that is just a giant straw man, so this entry is not very long. If you want a detailed refutation of it from a Market Anarchist perspective, check out my book But Who Would Build the Roads?. Otherwise, just don’t bother.