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Why I Favor Limited Government, Part 4


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On June 27, 1986, the International Court of Justice entered a money judgment in favor of the Republic of Nicaragua and against the United States of America. Nicaragua had sued the United States for having illegally mined Nicaraguan waters as part of the U.S.-supported Contra rebellion against Nicaragua’s Sandinista regime. The court ruled that the U.S. government had violated international law and ordered the United States to pay reparations to Nicaragua, which were later said to be in the neighborhood of $12 billion.

There was one big problem insofar as Nicaragua was concerned, one that has bearing on the paradigm of anarchy: the U.S. government refused to comply with the court’s judgment.

Nicaragua was stymied. The only way that a judicial judgment can be enforced against a recalcitrant litigant is through the use of force. As a practical matter, that means that someone must go out and begin seizing cash and other assets of the party against whom judgment has been entered.

What if the litigant forcibly prevents his property from being seized? In that case, whoever has the more powerful force is going to be the one that prevails.

Nicaragua was never able to collect its judgment. In order to do so, it would have had to employ force to begin seizing assets belonging to the U.S. government. For example, the Nicaraguan navy could have traveled to Florida, seized a U.S. army base, and begun selling off the seized property in order to collect its judgment.

But we all know what that would have meant. The U.S. military would have stepped in and through overwhelming force would have smashed the Nicaraguan military. The litigant with the superior force would have prevailed over the litigant with vastly inferior force at its disposal.

The problem of finality of judgment and enforcement of judgment that would inevitably arise under anarchy would be comparable to the situation involving Nicaragua and the United States, because under anarchy, there would be various independent competing judicial entities, each of which would have authority to issue its own judgments in matters relating to civil disputes.

Suppose, for example, that the Minnesota Defense League (MDL) were to issue a monetary judgment of $10 million in favor of one of its members against a member of the China Defense League (CDL), which is located a few miles away. When three agents of the MDL approach the front gate of the well-fortified enclave of the CDL seeking to collect the $10 million, they encounter 20,000 well-armed Chinese troops, whose commander informs the three MDL agents that the CDL does not recognize the jurisdiction of the MDL to enter such a judgment and, therefore, that its member will not comply with the MDL’s judgment. The CDL orders the three MDL agents to leave.

What does the MDL do? The three agents charged with enforcing MDL judgments could employ force against those 20,000 Chinese troops, but we all know how that would end. Without question, the agents would simply return home and the civil judgment would go uncollected, just as Nicaragua’s judgment against the United States went uncollected.

Recall the hypothetical criminal case with which we ended the previous segment. The North Korean Defense League (NKDL) had seized and convicted a member of the Minnesota Defense League and sentenced him to die. The MDL, in turn, had seized a member of the NKDL, accused him of a crime, and then offered to trade him for the MDL member. Recall that under our hypothetical, the MDL had a few hundred members and the NKDL had 10,000 well-armed troops.

We ended that segment with the question, What would be the result of those two cases?

Anarchists have a ready response, one that goes to the heart of the anarchy paradigm: Under anarchy, they maintain, people would work things out because resorting to violence would be too costly.

In many instances, the anarchists are right. The competing agencies would have to weigh the costs and benefits of resorting to force. In many instances, they might well decide that it would be better to work things out with the other side by reaching some sort of compromise.

But the fact is that in many instances, people simply do not work things out. The parties are simply unable to reach a meeting of the minds with respect to what would be a settlement that would satisfy both sides.

What then?

In that instance, the side with the vastly inferior force will very likely let the side with the vastly superior force get its way, just as Nicaragua did against the United States. Under our hypothetical, the MDL agents would undoubtedly acquiesce to the conviction and execution of their member and return home.

On the other hand, however, there might well be instances where the entity with the vastly superior force concludes that resorting to violence would be well worth it in terms of costs and benefits.

For example, let’s assume that in our hypothetical, the NKDL unconditionally demands the release of its member and that the MDL refuses. The NKDL analyzes the situation: 10,000 well-armed North Korean troops versus a few hundred armed MDL members. It is entirely conceivable that the NKDL will decide to attack rather than walk away. It might well decide that the costs of losing a few hundred men in a war are outweighed by the benefits of smashing the entire MDL, arresting the members who participated in the kidnapping of their member, sentencing them to years of hard labor, and seizing assets of the MDL in compensation for all the damage that the MDL has caused the NKDL.

Final judgment

That type of problem doesn’t happen under limited government. In the criminal law, for example, either the state or the federal government charges a person with a crime. The defendant can’t say, “Wait! I’ve got the right to be tried by my own court,” as he could claim under anarchy. He has to submit to the power of the state or federal court, whose judgment is going to be final. The defendant, of course, can appeal to the appellate courts but ultimately there is still going to be one final judgment, which is going to be enforced against the defendant by agents of the government, either state or federal.

There aren’t going to be conflicting judgments entered by independent, competing courts. There isn’t going to be one armed force facing another armed force. There is going to be one final judgment. If that judgment declares that the defendant is guilty and must serve time, he will have to submit to the overwhelming force of the government. If he resists, he will encounter the overwhelming power of the state.

The same principle applies in the civil law — that is, to civil disputes that arise between people in society. Recall part 1 of this essay, where I pointed out that one of the legitimate functions of government is to provide people with the means by which they can peacefully resolve their disputes. Under limited government, people have the right to go to court and present their grievances to a jury of ordinary citizens drawn at random from the community. Of course, a trial doesn’t guarantee that a just verdict is going to always be reached, but at least it guarantees people a process by which they can present their case and have it considered by a jury or judge.

Equally important, it enables the parties to have one final judgment in the case, rather than conflicting judgments entered by independent, competing courts. That one final judgment can then be enforced by the prevailing party against the losing party. And it’s the state, not the litigant, that does the enforcing. If the losing party resists with violence, the state will put him down with vastly superior force.

Let me give you an example of this phenomenon from real life. When I first started practicing law, I was representing a local bank that had lent a man around $10,000. When the note became due, the man refused to pay. He had the money — there was no question about that: he owned a nice jewelry store. I suppose he just figured that the bank would never go through the trouble of collecting a $10,000 debt, which was rather small in the larger scheme of the bank’s operations.

The bank asked me to sue to collect the debt. After the man ignored my letter demanding payment, we filed suit against him, which he ignored. We secured a court judgment against him for the money owed plus interest and attorney’s fees.

I sent him a copy of the judgment and requested payment, which he again ignored. At that point, there was only one thing that could be done to get the bank’s money — secure enforcement of the judgment. That necessarily entailed force because it involved seizing the man’s assets against his will. Under limited government, the bank itself cannot use force to collect its judgment. That’s the job of the state.

Notice something important here: The man didn’t have the right to go to a competing court, plead a defense, and possibly secure a conflicting judgment, as he could under anarchy. If that were the case, the problem would naturally arise over which conflicting judgment would prevail. Under limited government, if the man had any defenses to the lawsuit, he was required to present them as part of the case in which the bank filed its suit, so that there would be one final judgment in the case, with either the bank winning or the debtor winning.

To enforce its judgment, the bank secured the issuance of what is called a “writ of execution,” a type of judicial process that stretches back to the development of American and British common law. It is a special type of court order commanding the sheriff to collect the judgment, authorizing him to use force against the defendant. A court clerk placed the writ into the hands of the sheriff.

I was curious how this was going to play out and so I asked the sheriff if I could accompany his deputies when they went out to enforce the judgment. He said yes. On the appointed day, I accompanied the deputies, who were armed, to the man’s jewelry store, where there were customers in the store. The deputies asked for the owner and informed him that they were there to collect the bank’s judgment. They showed the owner the writ of execution.

The man objected and said he wasn’t going to pay a dime. At that point, I began pointing at various items of very expensive jewelry and asked the deputies to begin seizing them. The judicial procedure would have been to seize the jewelry and then later sell it at public auction, with the proceeds being used to satisfy the judgment.

The deputies began seizing the jewelry. The man objected vehemently but there was nothing he could do. If he used force against the armed deputies, they would have arrested him. If he had used deadly force, they would have responded accordingly. The man went into the back of his store and returned with the full amount of cash owed and handed it to the deputies, who deposited it into the registry of the court, which then sent it to us, in full satisfaction of our judgment.

That’s one of the great advantages of limited government. One final judgment, which can be enforced through the overwhelming power of the state. No wars between competing courts.

When things don’t work out

Another example of the principle of finality of judgment was the case of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples because to do so would violate her religious convictions. The problem was that the U.S. Supreme Court had ruled that state clerks were required under the U.S. Constitution to issue such licenses. Davis refused to comply with the order of a U.S. District Judge to issue such licenses. The judge cited Davis for contempt and ordered her to jail until such time she would comply with the law (or resign her position).

Some anarchists maintained that the jailing was outrageous, but it was nothing of the sort. It is simply one of the means by which final judgments under limited government are enforced against losing litigants who refuse to comply with a judicial ruling. Under U.S. law, the U.S. Constitution is the supreme law of the land and, therefore, overrides conflicting judicial rulings or actions of state officials. Davis knew that but nonetheless refused to comply with the Supreme Court’s judgment. By having her jailed until she complied with his orders, the federal district judge was simply enforcing the final judgment that had been entered by the U.S. Supreme Court. Davis ultimately submitted, complied with the judgment, and was released. There was never any bloodshed as a result of the conflict or the resolution of the conflict.

Compare that type of situation to anarchy, where independent judicial entities can each issue a conflicting judgment. Which judgment will prevail? What if both sides dig in their heels, insist on their own judgment, and refuse to comply with the other side’s judgment? What then?

Anarchists respond with what has become a core principle of anarchy: The notion that people will find a way to work out their differences in an amicable way. But as any judge in the land will tell you, such is clearly not the case. It certainly wasn’t the case with Kim Davis. Indeed, go into any courtroom in the country on any given day and the likelihood is that there is a trial going on. That’s a case in which the parties did not work out their differences.

Indeed, seek out the case-law reporters for the 50 states and for the federal district and appellate courts and the U.S. Supreme Court. You will find millions of reported judicial opinions, every one of which reflects a real-life case in which the litigants did not work things out, which is why they ended up going to trial. And after each trial and after each judicial decision, there was one final judgment that the winner could enforce against the loser.

Anarchists also maintain that under anarchy, people would not violate their contracts because they would be too concerned with their reputations. If they violate their agreements, anarchists hold, people would be less likely to deal with them. In support, anarchists cite the practices and customs of the law merchant in the Middle Ages, which we will focus on in the next segment.

However, as much as that might be the case in most instances, it certainly is not the case in all instances. Consider the jewelry-store owner. He obviously placed a higher value on the money than he did on the impact that his loan default had on his reputation. And my hunch is that his customers, who were only interested in buying jewelry, didn’t care either.

What we are dealing with is a matter of relative values. Some people might value reputation more than money. Others might value the money more highly.

Here’s another example from real life. The same bank I was representing had issued a letter of credit to a Mexican citizen involving millions of U.S. dollars. Some months after the letter had been drawn on, the Mexican government devalued the peso, and the man now stood to lose a vast portion of his fortune, owing to the need to pay the bank in U.S. dollars. The man refused to pay. He obviously figured that he’d rather have the millions of dollars and a bad reputation than a good reputation and be broke.

With those principles in mind, let’s now examine various historical examples that anarchists cite in favor of the anarchy paradigm.

This article was originally published in the June 2016 edition of Future of Freedom.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.