Why the Courts Aren’t All They’re Supposed to Be

by
Lee Friday
My articles My booksMy videos
Follow on:

In the United States, law courts routinely hand out court order mandating payments to victims. And then do little to enforce them.

For example, according to the U.S. Census Bureau, in 2015 only 43.5 percent of custodial parents received the full amount of court-ordered child support payments. 25.8 percent received partial payment while 30.7 percent — a figure which is trending higher — received no payments. I live in Canada, where the situation is equally, if not more, depressing, with nearly two-thirds of all support orders in arrears in 2014.

The government is huge, so the problem isn’t that the government lacks sufficient resources, but that it can arbitrarily decide how to allocate those resources. Meanwhile, ordinary people who depend on the courts to settle legal disputes have few other options. As Professors Martin Gilens (Princeton University) and Benjamin Page (Northwestern University) explain, government policy is designed to satisfy the desires of special interest groups, not the needs of commoners:

Not only do ordinary citizens not have uniquely substantial power over policy decisions; they have little or no independent influence on policy at all.

Okay, fine. Let’s say a single mother says to a politician, “You are supposed to be representing my interests, but you have failed. The bureaucrats are not enforcing the law, so I will. If that scumbag ex-husband of mine won’t pay, I will enlist the aid of my friends and family and we will seize a portion of his income or assets.”

The politician’s response would be, “No! If you take the law into your own hands, you will go to jail!” Most people would agree with that response: “We must reform government institutions, but we must never take the law into our own hands.”

However, government reform is unlikely because law courts have little incentive to enforce the law so as to favor the powerless. Thus, it remains unclear that governments offer many of the benefits they claim to offer.

Making Laws

There are other ways of doing things, although those unfamiliar with the history of law may find it inconceivable that lawmaking could occur outside the framework of government. However, laws have always been made — or discovered — by people. Therefore, the question is which people should make the laws. When laws are made by people operating within the institutional framework of authoritarian governments, history shows that the overwhelming tendency is for a small minority of people — special interest groups — to be favored at the expense of the masses.

In contrast, under customary law, laws were not enacted by specific people. Laws were discovered, not made. Through experience, people discovered that peaceful, prosperous, vibrant communities were impossible unless everyone observed certain rules of conduct: do not kill, assault, or steal. Surely more than 99 percent of people would acknowledge the necessity for such “laws.” Thus, the discovery of law goes hand in hand with this “virtually unanimous acceptance.” This stands in direct contrast to the government’s coercive imposition of thousands of authoritarian laws, many of which are not widely accepted by the people, and which drain resources away from the enforcement of laws preferred by citizens.

Law Enforcement in Medieval Ireland

One example of a stateless legal system can be found in medieval Ireland, where the role of kings was extremely limited. Kings had no taxing powers, they did not make laws, and their role in law enforcement was the same as that of everyone else. Murray Rothbard explains:

the law itself was based on a body of ancient and immemorial custom, passed down as oral and then written tradition through a class of professional jurists called the brehons. The brehons were in no sense public, or governmental, officials; they were simply selected by parties to disputes on the basis of their reputations for wisdom, knowledge of the customary law, and the integrity of their decisions. …

There were no other judges, no “public” judges of any kind, in ancient Ireland.

Furthermore, there was no monopoly, in any sense, of the brehon jurists; instead, several competing schools of jurisprudence existed and competed for the custom of the Irish people.

How were the decisions of the brehons enforced? Through an elaborate, voluntarily developed system of “insurance,” or sureties. Men were linked together by a variety of surety relationships by which they guaranteed one another for the righting of wrongs, and for the enforcement of justice and the decisions of the brehons.

There were various types of surety. For example, the surety would guarantee with his own property the payment of a debt, and then join the plaintiff in enforcing a debt judgment if the debtor refused to pay. In that case, the debtor would have to pay double damages: one to the original creditor, and another as compensation to his surety. And this system applied to all offences, aggressions and assaults as well as commercial contracts; in short, it applied to all cases of what we would call “civil” and “criminal” law. All criminals were considered to be “debtors” who owed restitution and compensation to their victims, who thus became their “creditors.”

The victim would gather his sureties around him and proceed to apprehend the criminal or to proclaim his suit publicly and demand that the defendant submit to adjudication of their dispute with the brehons. The criminal might then send his own sureties to negotiate a settlement or agree to submit the dispute to the brehons. If he did not do so, he was considered an “outlaw” by the entire community; he could no longer enforce any claim of his own in the courts, and he was treated to the opprobrium of the entire community.1

Child Support and Women’s Rights in Medieval Ireland

Our child support example is helpful in illustrating the accessibility of legal resources to the relatively powerless. Having studied medieval Irish law, Joseph R. Peden, a friend and associate of Rothbard, wrote: “A fair test of the sophistication of any legal system might be to examine the extent to which women enjoy legal capacity and property rights. By this standard, Irish law in the eighth century may have had more sophistication than English law in the days of Queen Victoria.”2

Imagine that — a sophisticated legal system in the absence of government! More from Peden:

Irish law recognized the right of divorce. A man might repudiate his wife for dishonoring him, doing him some injury or willful abortion. But, incredibly, the wife could initiate a divorce action against her husband! She could charge consanguinity, incurable infirmity, sterility, cruelty evidenced by lasting injury, slanderous remarks as to her character, abandonment for another woman, willful neglect in supplying the necessities of life, or abandonment by reason of his entering a monastery. None of the above except consanguinity was grounds for annulment in canon law. There were also some eleven categories of legal separation with respective property rights and obligations regarding the care of children and distribution of property.3

The Irish law recognized rights of maintenance and support which vary in degree and amount according to the character of the sexual union. For example, in a marriage of mutual portions the cost of “fostering” or rearing a child is shared equally by the parents; but if the child is born of a bondwoman, or as a result of rape, or in secret, the father is responsible solely for its rearing costs.4

But would these women be able to enforce the decision of the courts?

Certainly today, government courts and law enforcement agencies offer few resources even to those for whom the court has ruled.

The difficulty in carrying out these judgments, of course, has never been an easy manner, and this is why the private courts — as described by Rothbard — provided a variety of methods and sanctions that could be used to collect debts from one’s adversaries in court.

In contrast, today’s governments confiscate resources (through taxes), refuse to allocate these resources according to citizens’ law enforcement preferences, and then threaten victims with prosecution if they take the law into their own hands. More evidence of weak law enforcement is seen in the government’s failure to solve more than half of the violent crimes in the US, as well as in Canada.

Skeptics may say, “Well, we’re not in medieval Ireland,” but our example here is just one that can be used to illustrate the benefits of private law. The enterprise of law is not unique to states and has been practiced in very different and more responsive ways even into the nineteenth century.

In contrast, the government’s shameful record of law enforcement speaks to the weak legal character of the government’s relationship to the citizenry. The government accepts no legal obligation to provide specified law enforcement services in exchange for the taxes it forcible extracts from the citizenry. A clearly defined and voluntarily accepted reciprocal agreement between the government and the citizens has never existed.

• 1. Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto, 2d ed. (Auburn, AL: Ludwig von Mises Institute, 2006), pp. 289–90, mises.org/library/new-liberty-libertarian-manifesto.
• 2. Joseph R. Peden, “Property Rights in Celtic Irish Law,” Journal of Libertarian Studies 1 (1977): pp. 81–95, https://mises.org/library/property-rights-celtic-irish-law-0.
• 3. Ibid. Source provided by Peden: August Knoch, “Die Eheschudung in alter Irischen Recht,” in Studies in Early Irish Law, pp. 235–68
• 4. Peden, “Property Rights in Celtic Irish Law.”