David and thousands of others have defended the hypothetical libertarian world quite nicely. I just wanted to remind you of some irredeemable shortcomings of courts in our own State-dominated world. As usual, the very nightmarish scenarios Statists ascribe to their imagined, hypothetical, straw-man libertarian world already plague the Statist world. In our society, if you have a dispute with the State, you have to take your case to a State court and you have to accept its ruling! There is no possibility of 3rd-party arbitration, which would be beneficial in that case (a scenario only permitted by anarcho-capitalism).

The government is wrong all the time and it refuses to accept punishment or right its wrongs! It is so certain most of the time that the State court will rule in favor of the State that we don’t even consider suing it for its transgressions. The courts are owned and run by the State! Of course they’re usually going to rule in the State’s favor! History has shown this to be true. We read about it almost every day.

I think Anthony de Jasay expressed this dilemma nicely in his magnum opus, The State:

“In conflict with his own kind, he would have the faculty of appeal, of recourse to a superior instance. Freedom from conflict of like with like, however, puts him in potential conflict with the higher instance. In opting for the latter, the possibility of recourse is given up. The state cannot be seriously expected to arbitrate conflicts to which it is an interested party, nor can we invoke its help in our quarrels with it. This is why accepting private interference, no matter how much it resembles “Darwinist sweepstakes,” is a risk of a different order from that of accepting state interference. The prudential argument against putting public in place of private constraints is not that one hurts more than the other. It is the somewhat indirect but no less powerful one that doing so makes the state unfit to perform the one service for civil society which no other body can render&#8212that of being the instance of appeal.”

In other words, the very act of making the State the final legal authority makes it unfit to be a final legal authority.

I know pointing out that the State is worse is not the most rigorous or satisfying argument in favor of libertarianism, but it’s always true and it’s just so easy!

The Law Merchant.

Point, set, match to Franc.

contracts should be written in as clear and unambiguous a manner as is humanly possible

But that is of course not costless. We can either spend all our time drafting contracts, or we can actually go out and do stuff.

(An analogy: If you spend all your time blogging about your snowboarding adventures, then you end up with no snowboarding adventures to blog about.)

This is exactly what I try, with woefully little success, to explain to harder-core libertarians and an-caps about “government in the marriage business.” It’s very cute to say “just replicate it through contracts,” but contracts are expensive, and time-consuming. A uniform, easy and cheap system that gets 95% of couples 95% of what they want seems like a pretty good idea to me, and to dismiss it outright, regardless of the economic implications, merely because the government is involved is, quite frankly, silly.

(A related issue is the adhesion contract and the EULA/TOS. It’s totally myopic to damn such terms of sale — voluntary sale, incidentally — without acknowledging that they make the product vastly cheaper to produce. How much would a cruise ticket or piece of complex software cost if each contract with each customer had to be separately negotiated?