Rights Enforcement Without Government

One of the common themes in the Ares Project universe is the problems that result from the lack of a government on Mars – or, to be more broad-minded about it, the lack of formalized mechanisms for resolving disputes, something traditionally handled by government.

The Mars Development Agency is a non-governmental organization, and while some characters see it as a provisional government, it’s authority and powers are strictly limited in scope and degree by the Mars Charter. It was established primarily to run the land claim registry system and to build and operate essential infrastructure in support of settlement activities. As a number of characters have pointed out, MDA has no army or police force through which it can exercise a force monopoly – a fact the stories provisionally titled “True Crime” and “The Olympian Race” explore in some detail. Its power lies in its ability to screw over the commercial settlements that get out of line by cutting off their interplanetary communications and cargo shipments via Phobos, pressuring the (in some cases vital) concessions at Port Lowell to charge astronomical prices or not do business with them at all, and in the case of settlements whose land claims have not yet vested, taking away their provisional claim and thereby undermining their business by scaring off their investors. The settlements are left to work out their own rules for resolving disputes, and when this fails to litigate through their agents on Earth.

After reading the draft of “True Crime”, one of our reviewers noticed similarities in certain elements of the story’s background to David Friedman’s contractual/market-based alternative for rights enforcement – something quite unexpected, as neither Carl nor I had heard of David Friedman. In a nutshell, the concept is that individuals contract with a rights enforcement agency to represent them in disputes with others – think of it like having an insurance policy where the insurance company protects your rights. In the event of a dispute, your agency and the other party’s agency contract with an impartial third-party arbitrator to settle the matter. Along the way, a form of law evolves out of (among other things) what the agencies are willing to go to bat for you over under what circumstances, and the track records of agencies in accepting the rulings of arbitrators and of arbitrators in how they make rulings.

I like the concept, given that it could emerge naturally in a clean-sheet society with no government in the familiar sense, made up of people most of whom have joined it through a contract (the standard 5-year employment contract covering the cost of transport to Mars), who live in communities that are essentially company towns where conduct is subject to rules laid down in the employment contracts, and where relations outside the town are subject to the terms of commercial contracts. (I can’t see this ever emerging in an existing society and displacing an extant government.)

One question that I haven’t resolved is, unfortunately, something at the core of “True Crime”: what do you do when someone murders someone? No one in their right mind is going to contract with a rights enforcement agency that would countenance the death penalty, however unlikely they are to engage in a capital offense. I’m betting this is a plus for those libertarians who would consider this arrangement, given their philosophical opposition to capital punishment: in order to get any business, a rights enforcement agency would have to state in its contract and in negotiations to select an arbitrator that it will not accept execution, torture, or other extreme penalties. If one did not, they would get few if any clients, and their willingness to let them be killed would be rendered moot by the unwillingness of other agencies and arbitrators in this regard.

That still leaves the question of how murder (for example) would be punished under a contract-based society like this. The obvious alternatives are imprisonment, servitude, and restitution. Mars doesn’t have the resources for literal prisons (barring an unlikely rate of crime that makes private prisons paid for by the “losing” agencies economically viable). That leaves servitude and restitution, which in practice may amount to the same thing – indenturing the killer to work for the victim’s settlement for some period of time, for example, or adding the dead man’s remaining contract to that of his killer (payable to the victim’s settlement) as restitution. 

But as with many bright libertarian ideas, it treats the problem in purely economic terms, ignoring the moral and societal aspects. Is simply paying what is in effect a weregild adequate punishment for murder? How would one ensure the establishment of social norms beyond simple payment of money, so as to ensure that one can’t simply murder as many people as one can afford? I suspect that anyone running into this more than once would render themselves ‘uninsurable’, i.e.: unable to find any agency to protect their rights, and thus ironically in the vulnerable position of the outlaw in Commonwealth Iceland instead of being able to murder at will. Given time to look further into this, I suspect answers to most such objections can be found in medieval systems of tribal or thing law.

2 thoughts on “Rights Enforcement Without Government”

  1. Interesting video and write-up. I usually shy away from extreme tests, like the (hopefully) rare murder, but in this case agree it is a perfectly valid question. It will eventually happen, and how it is handled will be important. I do think there is one potential, practical “imprisonment” option that consists of isolation at a post remote enough that escape is impossible, with or without bars or locks. I have trouble envisioning a servitude/restitution alternative, with the offender working around others, but maybe I’m not thinking hard enough.

    However I completely disagree with the statement “No one in their right mind is going to contract with a rights enforcement agency that would countenance the death penalty.” On the contrary, most wouldn’t give it a thought. Virtually nobody, especially in the educated, skilled classes that would dominate Mars settlement, would consider it a remote possibility that they would commit murder or even be accused of such. Any of us who have had surgery, even elective surgery, have reviewed and signed documents highlighting the sever risks up to and including death. We do it anyway. It’s also the reason the death penalty, while it delivers on at least one promise (they won’t do it again) is NOT a deterrent. Killers either a) don’t think, or b) don’t think they’ll get caught. If someone won’t engage with an agency that allows for the death penalty, it’ll be because they object to the death penalty on principle, not because they are concerned about it being applied to them.

  2. Good points.
    On imprisonment, I think it depends on the context of the crime. If it was an accidental or negligent death, where others can sympathize with the convicted person to some degree (say, a manslaughter in which there was responsibility but not intent), you might be able to have the convicted person serve out their contract-extension sentence in either their own settlement, that of the victim, or some agreed-upon third-party location. They’ll be shunned to some degree at first, and watched over with suspicion by everyone around them lest they accidentally or negligently kill someone again, Over time and with good behavior, however, any animus towards them will fade, they’ll get habituated to having to watch their actions and be more cautious/responsible, and end up being “rehabilitated” (in both common senses of the term).
    Premeditated and heat-of-the-moment murders are another matter. Nobody is going to want someone in their settlement who killed someone with intent, for the moral reason that they violated one of our strongest taboos, and for the practical reason that they might do it again. Then there is the corrosive effect on the society of seeing one of the most serious of crimes only mildly punished – the inadequacy of the consequences (the killer is shunned, yes, but still walks free; he has to pay a ‘weregild’ of sorts, but that penalty is abstract and unseen by the populace) will inevitably drive others to take ‘justice’ into their own hands. This happens a number of times in the Icelandic Sagas, as I recall, where the chieftains arbitrated a resolution to a killing, only to have the victim’s family attack the killer and/or his family later on because they felt the resolution was inadequate. The only somewhat satisfactory solution was a period of banishment (and even that didn’t always solve the problem, as some people manage to hold fierce grudges for a very long time).
    Which is why I’m generally suspicious of libertarian solutions – they work great with theoretical humans, but less so when you have to apply them to the real ones.
    So, you’re right about exile being a better (if still imperfect) option. Once Mars grew large enough, the rights agencies could establish their own ‘penal settlements’ of sorts, settlements remote enough from the rest that those sent there couldn’t simply walk away and cut off from outside communication. Those convicted of serious crimes could be sent to serve out their arbitrated sentence away from the offended population, the remoteness and confinement combined with the ‘weregild’ element might be an adequately harsh punishment to appease same, and their exile from the general settler population (as opposed to merely shipping them to some other regular settlement for a time) would allow space for passions to cool on all sides – they’d be out of sight and out of mind of all the settler population for the duration. To maintain the contract/voluntary element here, this exile would have to be something offered to the convicted person as an option – the alternatives being either serving it out among the general population as described above (with the noted potential risks), or in extreme cases the equivalent of ‘outlawry’: the rights agency will cancel their contract and leave them entirely unprotected.
    Obviously some sort of protections or incentives would need to be built into the system to prevent the exiles from being mistreated or exploited – for example, an agency that guarantees fair and humane conditions in exile would have a natural selling point for contracting with them.
    Which brings us to your point about contracting with an agency that does not eschew the death penalty. I think you’re right about that, up to a point. Decent people would never imagine themselves killing someone else, except perhaps in self-defense, and someone willing to kill another person is probably not going to think while planning the act or caught up in the passion of the moment about whether or not what they’re about to do will be ‘covered by insurance’.
    But a potential customer, even a decent, lawful one who would never think of committing a capital crime and who would support the death penalty in principle, will certainly take pause when confronted with a clearly-stated contract provision that amounts to ‘if you screw up badly enough, we will put you to death’. You (well, I) do take pause in real life with informed consent to elective medical procedures, just like you say, but there one is accepting an impersonal and random/uncontrollable risk – “you *may* die due to unknown factors” is a very different proposition from “we *will* kill you under specific circumstances”. In risk terms, even though the superficial consequence is the same (death) and the likelihood of occurrence of capital punishment for a decent, normal person is smaller than a fatal side-effect from a medical procedure, the calculus can’t not be emotionally skewed by the intentional vs. accidental causative factor.
    Given similar-enough contracts, that could easily tip the balance towards the agency that does not have such provisions. Provisions that promise (or even just permit) capital punishment would be a mortal salience stimulus that would unsettle anyone considering signing such a contract – touching on the possibility of their death will draw attention to their mortality and ensure special consideration of the relevant provisions in a way qualitatively different from the more conventional provisions of the contract. Anyone reading such contract terms will take special notice of them and be put off by them, consciously or otherwise – it’s something much more primal than principles.
    What I see happening in practice with such terms is that (barring collusion between the agencies to uniformly include them) the market itself will rapidly eliminate them. An agency that offers similar coverage but bars capital punishment will see more business, other agencies will notice this and follow suit, and very quickly you will find no contracts on offer that don’t exclude it. Principled opposition to the death penalty might prompt the initial offering of such contracts as a niche market, but basic human psychology will ensure they become the norm.
    What, however, would you then do about serial killers for whom ‘weregild’ is just the cost of doing business, so to speak, or those who kill someone without remorse or compunction or in some especially notorious way for whom exile (even permanent) is neither rehabilitative nor perceived by the general population as adequate punishment? That is, cases where deterrence is ineffective, rehabilitation is impossible, and the crime is such that it calls for a more serious punishment than a fee or banishment? In the context of Mars settlements, you have the option of simply shipping them back to Earth, but that only shifts the problem to someone else’s court (and as we show in the case of Babbage in the aftermath of “In the Shadow of Ares”, it’s both ineffective and inadequate given the confusion of jurisdictions, etc.)

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