A Sketch of a Consensual Future
Here I want to outline one set of ideas for how a future, stateless society could achieve peaceful cooperation and settle disputes as they arose. I do not mean to argue that all stateless societies or polycentric legal systems must look like the following account, but I believe that a clear, specific proposal to evaluate can help us investigate the feasibility of polycentric law as a potential social system for future stateless societies to employ.
Imagine a world, like something out of a science fiction novel. Here, people have created a number of mutual defense associations; let’s call them “clubs” so that we have a shorter name for them.
These clubs are run much like the mutual aid societies of the past, though where these past organizations focused more on providing healthcare and various forms of insurance to their members, (such as unemployment insurance,) and took care of their members in old age, (Beito, 2000) (Skocpol and Oser, 2004) the clubs in our imaginary society focus more on security and the resolution of disputes.
Internally, these clubs are structured as follows: Local chapters serve specific geographical areas, but work together when doing so can benefit participating chapters. Members of each chapter make decisions among themselves through some form of consensus building, or through direct or “liquid” democracy. They usually accept new members into their chapter only if nearly all of the present members agree to accept them.
People in this society can join any club they choose, but usually will find one that has a local chapter close to where they live, so that they can attend meetings in person and get to know the other members. If a club doesn’t have a chapter in their area, they may try to create one.
Prospective applicants apply for club membership in ways similar to how the people of the past applied for specific jobs, or for formal membership in churches or non-profit organizations. They agree to follow the rules and guidelines of their new club if accepted, they offer references and a resume, and the other members of the local chapter that the applicant has applied to consider the application, discussing amongst themselves what to do, and eventually decide, usually through secret ballot, whether or not to accept the new member. The process works similarly for children applying for membership in their first club as an adult, for adults switching clubs, and for people immigrating in from completely different societies.
Club membership is based in voluntary, free association. Members explicitly consent to join clubs, and they always maintain the freedom to exit their current club at no cost to them above sunk costs. In other words, clubs can not require their current members to change where they live as a condition of leaving the club, nor can they charge exit fees. Clubs have no territorial monopoly over security or dispute resolution services, and, while membership in a specific chapter may be based in part on where a person lives, club membership more broadly is not based in place of residency; it is, rather, based in contract.
In most places, many different clubs have members and local chapters, so people in a given area almost always have an array of different clubs to choose from; if they decide, at any time, that they no longer wish to be a member of one, they can apply for membership in another, and, if accepted, switch over. They may also attempt to start a new club, or go for a time without membership in any club. People often live close to members of other clubs, sometimes even next door to them or even in the same household, and they also often belong to the same club as people living a great distance away, even if they belong to a different chapter.
These are the essential differences between a polycentric club system and a system of government. To escape the authority of the governments of old, people had to leave that government’s territory, as well as, quite often, paying their former government an exit fee for the privilege of renouncing or relinquishing their citizenship. (Cann, 2020) Since governments had monopoly powers over the provision of dispute resolution and security services within their claimed territory, their subjects often had little ability to escape their edicts. The high cost of paying an exit fee and leaving the territory, sometimes having to move great distances away, made escaping the rule of one government extremely costly and prohibitively difficult for many, especially the poorest members of the society.
In contrast, once people adopted polycentric law and abolished the governments of old, they secured for themselves the ability to control the clubs to which they belonged. The low cost of exiting associations secured for each individual member a much stronger voice in the actions of the group; free association transformed organizations, formal and informal, into de facto consensus based institutions, because all members of a group knew they had to persuade other members to remain, no longer having the power to force them to do so.
Club members generally pay periodic subscription fees, (e.g., annual or quarterly,) to their local chapters, and also agree to follow the rules and guidelines of their club. In exchange, their clubs promise to provide or procure various services for them. Clubs provide mediation and arbitration services for their members, helping them resolve disputes with each other, and with members of other clubs. They also provide detective and security services, and provide their members with “target-hardening,” defensive technologies, such as locks and alarm systems for their homes and businesses, safes, cameras, gates and turnstiles, secure ways to communicate, etc. While the clubs focus on these sorts of dispute resolution and security services, some of them also provide other services, such as unemployment insurance and healthcare, like the mutual aid societies of the past.
When members of the same club have a dispute, they have the ability to call on the arbitration or mediation services of their club. Different clubs have different specific practices, but they commonly rely on arbitrators, either individuals or panels, mediators, and/or juries to help their members settle disputes. The arbitrators, jury members, etc. can use the club’s rules as guidelines for how to decide each case, but those judging a case can decide how to interpret and apply these rules.
When members of different clubs have a dispute, their respective clubs can work together to select an arbitrator to hear the case and render a decision, or help the disputants negotiate and agree on a means of resolving their dispute. Clubs may contractually agree ahead of time on who they’ll rely on for dispute resolution.
People who have a dispute can, in principle, agree on any third party to help them resolve their dispute, they are not required to rely on judges selected by their clubs, but the clubs provide them with a ready means of finding skilled, reliable third parties to help them. The “laws” of the society at large are created through a combination of different means. In principle, arbitrators can use any criteria they wish to render a decision, thus creating and changing laws in a direct sense; however, in practice, disputants can rely on any arbitrator they choose, and so members of society all create their laws by freely selecting those arbitrators who will use the criteria that they, as disputants, prefer.
In addition, arbitrators generally use a club’s rules as guidelines when possible so that the disputants are more likely to accept the arbitrator’s decision, having explicitly agreed to abide by the rules of their own club, and having had the opportunity to select a club aligning with their own values. Clubs can create and change these rules through consensus, direct democracy, and/or liquid democracy, (or, in principle, through any decision making process they agree to.) This gives club members a direct sort of control over the laws of their society, particularly since, if their club changes the rules in a way they disagree with strongly enough, they can exit the club altogether and join one more in line with their values, without having to physically relocate or pay an exit fee.
Restitution, Restoration, and Enforcement
The whole dispute resolution process focuses, as much as possible, on helping victims become whole again, and on healing communities and social bonds. “Punishment” is, culturally, regarded as essentially pointless on its own, and even, often times, counterproductive or destructive.
Clubs distinguish “punishment” from a number of other responses to violations of social norms. Punishment involves measures such as imprisonment, execution and corporal punishment that harm an offender in ways that would normally themselves constitute violations of social norms. (Golash, 2005, pg. 2) Rather than relying on punishment, clubs rely on some combination of restitution and restorative justice, formal condemnation or public shaming of offenders, varying degrees and forms of ostracism and/or banishment, defense of victims while an offense is occurring, and actions that reduce the likelihood of people offending in the first place, such as target-hardening, alleviation of poverty and hardship, growing communities and social relationships, and so forth.
Often, in those cases in which arbitrators decide in a plaintiff’s favor and against a defendant, they will conclude a case by asking the defendant to pay restitution, or compensation, to the plaintiff. In cases of theft, for instance, offenders may be required to either return stolen goods or offer enough compensation for their victim to obtain replacements. In the case of physical assault, offenders may be required to pay for the hospital bills and costs of recovery that their victims endure as a result, as well as compensating them for any time lost that they otherwise could have spent working.
If a defendant refuses to pay compensation, or otherwise refuses to participate in the process of dispute resolution, then the clubs can call on their members, and on society at large, to help them undo the harms done through an offense and, as much as possible, shift the burden of these harms away from victims and onto offenders. Most clubs, especially those well established throughout society, have agreements with many local businesses such that employers will garnish the wages of an offender in order to pay for the costs of compensating those they’ve harmed.
In addition, clubs often have agreements with organizations providing utilities and other goods and services such that, in extreme cases, offenders can be ostracized by society at large, losing access to Internet, electricity, water, natural gas, the use of roads, the ability to shop at various businesses, and so forth. In practice, in these cases, communities effectively give offenders a choice between exile and house arrest. However, clubs only rely upon complete ostracism or house arrest as last resorts, for instance if offenders engage repeatedly in violations of social norms, engage in severe violations, and / or repeatedly and completely refuse to cooperate with the dispute resolution process. In most cases clubs try to help their members resolve disputes without cutting offenders off from the rest of society.
Individual club members always retain the ability to refuse to participate in boycotts or other measures taken to enforce arbitral decisions. Similarly, employers can refuse to garnish the wages of their employees. Clubs can, of course, respond by calling for secondary boycotts of those who refuse to help them enforce arbitral decisions in these ways, and can stop providing services and information to those who refuse aid.
However, in practical terms, reliance on decentralized, voluntary enforcement places another strong check on the power of mutual defense associations. If a club or arbitrator decides a case in a way that the broader community disagrees with, the members of that community can individually decide whether to remain members of those clubs, continue relying on the services of those arbitrators, or help enforce the decision. Community members do not all have to agree on these points, every individual can choose how they will personally respond throughout the process.
If offenders do wish to, and try to, cooperate with the dispute resolution process, their communities treat them with a degree of dignity and humanity. Again, clubs focus on undoing any harm that was done through an offense, and on healing the breach in social relations. Clubs usually act as mutual surety groups; if an individual member must pay restitution, but lacks the resources to do so, their club helps them make the payments, while reserving the ability to raise subscription fees for offenders if they believe it necessary to prevent offenders from taking advantage of their club. The system, as a whole, thus provides ample means for victims to obtain restitution or compensation for harms they’ve suffered. Cooperative offenders are given opportunities to explain and apologize for their actions and reintegrate into their communities. Victims and offenders are also encouraged, (though not required,) to discuss events with each other, gain an understanding of the other side, and find a way to heal any broken social bond between them and regain an ability to cooperate with each other and live and work as parts of the same communities.
Some offenses do permanent damage to victims, such as maiming, homicide, and destruction of irreplaceable material objects. In these cases, clubs often still employ processes similar to the above, but they accept that restitution, in these cases, may not truly undo harm done. Never-the-less, by requiring restitution even in these cases, as well as making formal statements condemning offenders’ actions and expressing support for victims and their families, clubs help deter individuals from harming others, and help victims, (and/or their families and communities,) move past an offense. In other words, while participants understand that permanent harm has been done, they still try to come as close as they can to undoing what harm can be undone and to healing social relations. Norm violations that cause permanent harm are treated as especially severe, and are most likely to elicit severe responses, such as banishment of offenders, but clubs still recognize that punishment of offenders will not undo harms done anymore than will any other action.
All of the above processes and examples of collective action are continuously subject to negotiation and bargaining among all parties and stakeholders involved. In the State societies of old, some governments relied, in part, on jury trials to decide cases, and juries had the ability to engage in “jury nullification,” judging the law itself in addition to the defendant’s actions. In the stateless societies that succeeded them, the line between legislation, nullification, and any other action has become blurred to the point of near-complete erasure. The “laws” of these polycentric law societies are fluid and open to change through a variety of means.
Prospective arbitrators, mediators, and jury members have a choice to hear a case or not, and in those cases they hear they can choose for themselves what decision to offer, and on what criteria. Disputants can choose whether to participate in the process of dispute resolution or not, whether to accept a judge’s decision or not, and what alternatives to propose to the other disputants, the clubs, and the judge. Clubs can decide whether to back up their individual members, whether as plaintiffs or defendants, and in what ways to do so. Other community members can decide whether or not to help clubs enforce the decisions of arbitrators through boycott and other actions.
Each step of the dispute resolution process inevitably entails an element of subjectivity, and negotiation. People decide for themselves what answers they consider correct in each case, and what actions to take. While they work together to maintain social order, they also, often, disagree, and as part of working together they learn how to disagree, and take different paths, peacefully.
Those living in the state societies of old would, for the most part, have never expected people to learn how to get by without the State. So tight was the grasp that governments had on the minds of their subjects. Yet get by people did, when those governments finally collapsed in on themselves or were abolished, and when people discovered, through a long, arduous process of experimentation, how to live free, how to create social institutions that respected the consent of participants, and how to end the vicious cycle of violence and oppression that had characterized life under the State.
And when those living free looked back at the graspings and speculations of those few thinkers who had worked to reach this future, they laughed, (albeit kind-heartedly and sympathetically,) as how far short those early thinkers had fallen of understanding. Yet, they also thanked them, those idealists of old, for the work they did to lay the foundations for the future.
In a way, this concludes our tale, bringing us out of our speculative future and back to our present. But in a different way, our story continues, and must continue, if we are to pursue such a future. A great deal of work remains.
For those who wish to help with it: Welcome. Let’s get started.