Almost all discussions of private courts I’ve encountered eventually hit a wall. Each time this wall looks different, but the essence can roughly be expressed as “who will be the chief boss over the judges?"—and the discussion concerns not persons but institutions. Sometimes this wall takes the form of the need for a separate “court of last resort,” on which it will be written that it alone has the final word. Sometimes it stays at the level of debates about the “publicness” of law. Sometimes it runs up against what seems like a purely practical question: “Why should I comply with decisions?” (or “What will force someone to comply with decisions?")—and the answer that people will come and physically enforce the rulings doesn’t work here. What matters is “by what right” any of this will happen.
It seems to me that these, at first glance, different wrappings conceal the same problem: the problem of external authority.
Indeed, external authority as a source of law is much older than the state. Kreveld writes about “spirits of ancestors,” which served as external authority for North American Indians. And in general, as far as one can tell, “spirits of ancestors”—from whose behalf shamans or elders speak, dispensing justice (and inventing various taboos not without benefit to themselves)—is such a common trope of anthropology. It is unknown in whose name justice was dispensed in developed but stateless societies like Ireland. The brehons themselves were not judges but advisors to “kings” who personally dispensed justice. Possibly in their own names, although this is my conjecture; I found no information on this.
In the case of the state, the court always delivers decisions in the name of an authority external to the judge—that is, the state itself, be it “the king,” “the people,” or “the law.” Let us consider what the practice of tribes and states attaching external authority to judges’ decisions actually reflects. To us, “advanced and enlightened” people, the formula “in the name of Ukraine” (or any analogous one) seems like some “show,” like robes and wigs. But in reality it has an important economic meaning.
What unites the shaman and the state court in this sense is that their activity has no direct commercial character—that is, it is not aimed at direct profit-seeking—and the judge’s income (at least in the ideal state version) does not depend on the quality of the decisions he makes. In the case of a tribe, there is nowhere for a private court to emerge from. In the case of the state it is inadmissible, as it would destroy the monopoly on violence. But in both cases the court must enjoy trust.
In the case of the tribe, evolution found such a trust mechanism in the form of spirits of ancestors. That is, the shaman does not, as it were, speak from himself, but exclusively represents the spirits of ancestors in his decisions. This allows him to deliver decisions with which others will agree, even those who do not particularly like the shaman personally as a fellow tribe member. This same circumstance creates a control mechanism, because if things get really bad, the aggrieved can try to eliminate the malevolent shaman on the grounds that he poorly understands the will of the ancestors and that in reality they meant something else.
With the state it is the same story, especially considering that today it has replaced God. Again, by making decisions in the name of the divine essence, the judge thereby creates mechanisms ensuring trust in the system as a whole. The judge is bad; the king is good.
Crudely speaking, the external authority, in whose name the court speaks, is one of the attributes demonstrating to the client the court’s lack of interest in the outcome of a specific case. This is one of the foundations of the system.
People who argue about private courts have simply grown too accustomed to the judicial system being built on reference to external authority. They have seen nothing else; they grew up with this circumstance. Therefore, consciously or unconsciously, they try to shove this external authority into the system of private courts. They try to understand where it is in this system, and not finding it, consider the system impossible. But external authority does not exist just so, not by itself; it exists because it has a role in the system. However, the private court system simply does not need such a role, as it has competition. The lack of interest in the outcome of a case is ensured here not by the presence of external authority but by the condition of survival in the market.