本文选自：

原文：

书摘：David Friedman, 1973, The Machinery of Freedom, Chapter 29

市场中的xx、法庭和法律

[美] 大卫·弗里德曼

翻译：JL

审校：薛兆丰

How, without government, could we settle the disputes that are now settled in courts of law? How could we protect ourselves from criminals?

没有了政府，我们怎样才能解决现在我们可以在法庭上解决的争端，又将怎样保护自己免受各种犯罪的侵害呢？

Consider first the easiest case, the resolution of disputes involving contracts between well-established firms. A large fraction of such disputes are now settled not by government courts but by private arbitration of the sort described in Chapter 18. The firms, when they draw up a contract, specify a procedure for arbitrating any dispute that may arise. Thus they avoid the expense and delay of the courts.

我们首先来看看最简单的情况，即发生在正规公司之间的合同纠纷。如今大部分这类的纠纷已不再由政府法庭来解决，而是由一种私下的仲裁方式来解决，这种方式在第18章中已作过介绍。这些公司在拟写一份合同时，就指定了当纠纷发生时将使用的仲裁程序。这样他们就省却了法庭的费用和延误。

The arbitrator has no police force. His function is to render decisions, not to enforce them. Currently, arbitrated decisions are usually enforceable in the government courts, but that is a recent development; historically, enforcement came from a firm’s desire to maintain its reputation. After refusing to accept an arbitrator’s judgment, it is hard to persuade anyone else to sign a contract that specifies arbitration; no one wants to play a game of ‘heads you win, tails I lose’.

仲裁人不象xx那样具有强制力。他的作用只是提供裁决，而不是执行裁决。在今天，仲裁判决在政府法庭中通常可以强制执行，但这不过是最近的发展。历史上，强制力实际上来自公司维护自己声誉的愿望。一个公司一旦它拒绝接受仲裁的判决，它就很难再让其他公司与它签署包含仲裁条款的合同了；毕竟没有人会愿意玩这样一个“不是你赢就是我输”的游戏。

Arbitration arrangements are already widespread. As the courts continue to deteriorate, arbitration will continue to grow. But it only provides for the resolution of disputes over pre-existing contracts. Arbitration, by itself, provides no solution for the man whose car is dented by a careless driver, still less for the victim of theft; in both cases the plaintiff and defendant, having different interests and no prior agreement, are unlikely to find a mutually satisfactory arbitrator. Indeed, the defendant has no reason to accept any arbitration at all; he can only losewhich brings us to the problem of preventing coercion.

仲裁的安排已经被广泛采用。随着法庭的日益败坏，仲裁将大行其道。但仲裁只能用来解决预先签定了合同后所发生的争端，它本身不能帮助一个因别人鲁莽驾驶而撞坏了汽车的人解决问题，它更帮助不了偷窃的受害者。在这两个例子中，原告和被告都有着不同的利益，也没有预先的协议，所以很难找到双方都满意的仲裁人。事实上，被告xx没有理由去接受任何仲裁——他只可能输，因此我们要着手解决这类如何阻止侵犯的问题。

Protection from coercion is an economic good. It is presently sold in a variety of formsBrinks guards, locks, burglar alarms. As the effectiveness of government police declines, these market substitutes for the police, like market substitutes for the courts, become more popular.

免受侵犯是一种经济商品。它现在在用各种方式推销着——防盗网，门锁，防盗xxx等。由于政府xx的效率越来越低，这些取代xx的市场服务，就象那些取代法庭的市场服务一样，已经变得越来越普遍了。

Suppose, then, that at some future time there are no government police, but instead private protection agencies. These agencies sell the service of protecting their clients against crime. Perhaps they also guarantee performance by insuring their clients against losses resulting from criminal acts.

那么，假设将来有{yt}没有了政府xx，取而代之的则会是私营的保安代理。这些代理提供的服务是保护客户免遭侵害。他们或许还会为顾客购买保险，避免他们因犯罪行为遭受损失，并以此作为他们工作表现的一种担保。

How might such protection agencies protect? That would be an economic decision, depending on the’-costs and effectiveness of different alternatives. On the one extreme, they might limit themselves to passive defenses, installing elaborate locks and alarms. Or they might take no preventive action at all, but make great efforts to hunt down criminals guilty of crimes against their clients. They might maintain foot patrols or squad cars, like our present government police, or they might rely on electronic substitutes. In any case, they would be selling a service to their customers and would have a strong incentive to provide as high a quality of service as possible, at the lowest possible cost. It is reasonable to suppose that the quality of service would be higher and the cost lower than with the present governmental system.

这种保安代理如何实施保安的功能？那将是一个经营决策，一个建基于对各种可选方案进行成本效益分析的经营决策。一种极端的情况是他们xx于采取被动防御的措施，他们会安装起严实的门锁和警报系统。或者，他们会主动出击，全力以赴歼灭那些针对他们的顾客的犯罪行为。他们会建立起巡逻队伍和装甲车，就象我们现在的政府xx一样，他们也可能会借助电子仪器来完成任务。无论如何，他们始终都在为顾客提供服务，并且有强烈的愿望，尽可能以{zd1}的成本来提供{zg}质量的服务。我们有理由认为这种服务的质量会比现有政府所提供的更高，而成本却更低。

Inevitably, conflicts would arise between one protective agency and another. How might they be resolved?

不可避免地，不同的保安代理之间将会发生冲突。这些冲突如何去解决呢？

I come home one night and find my television set missing. I immediately call my protection agency, TannahelpInc., to report the theft. They send an agent. He checks the automatic camera which Tannahelp, as part of their service, installed in my living room and discovers a picture of one JoeBock lugging the television set out the door. The Tannahelpagent contacts Joe, informs him that Tannahelphas reason to believe he is in possession of my television set, and suggests he return it, along with an extra ten dollars to pay for Tannahelp’s time and trouble in locating Joe. Joereplies that he has never seen my television set in his life and tells the Tannahelpagent to go to hell.

某天晚上当我回到家，发现我的电视机丢了。我马上向我的保安代理Tannahelp公司报失。他们派来一个帮办。他检查了Tannahelp公司作为服务项目之一的安装在我家的自动摄像机，发现了一个叫Joe Bock的人将电视机拖出门的镜头。Tannahelp的经理人与Joe Bock联系上，告诉他Tannahelp公司有证据证明是他拿了我的电视机，并建议他物归原主，且向Tannahelp公司交纳10美元以补偿公司所花的时间和找寻Joe的麻烦。Joe回答说他从未见过我的电视机，并叫Tannahelp的帮办去见鬼。

The agent points out that until Tannahelpis convinced there has been a mistake, he must proceed on the assumption that the television set is my property. Six Tannahelpemployees, all large and energetic, will be at Joe’s door next morning to collect the set. Joe, in response, informs the agent that he also has a protection agency, Dawn Defense, and that his contract with them undoubtedly requires them to protect him if six goons try to break into his house and steal his television set.

帮办向Joe指出，他必须认定那电视机是属于我的，除非证明Tannahelp公司确实搞错了。6个牛高马大的 Tannahelp公司雇员明早将会到Joe处取回电视机。Joe则回答帮办说，他也有一家签约保安代理—— Dawn Defense公司。如果那6个蠢猪想闯进他家抢他的电视机的话，他们无疑会依照合同规定前来照应他。

The stage seems set for a nice little war between Tannahelpand Dawn Defense. It is precisely such a possibility that has led some libertarians who are not anarchists, most notably Ayn Rand, to reject the possibility of competing free-market protection agencies.

此时，似乎准得在Tannahelp和Dawn Defense之间来一场硬仗了。这一可能性之大，使得一些并非无政府主义者的自由主义者——赫赫有名者如Ayn Rand——否定了自由竞争市场下的保安代理服务的可能性。

But wars are very expensive, and Tannahelpand Dawn Defense are both profit-making corporations, more interested in saving money than face. I think the rest of the story would be less violent than Miss Randsupposed.

但打斗的成本是很高的，而 Tannahelp和 Dawn Defense 两家都是谋利的公司，对金钱的兴趣比对面子的兴趣大。我想接下来的故事要比 Rand女士所预想的暴力程度要低。

The Tannahelpagent calls up his opposite number at Dawn Defense. ‘We’ve got a problem. . . .’ After explaining the situation, he points out that if Tannahelpsends six men and Dawn eight, there will be a fight. Someone might even get hurt. Whoever wins, by the time the conflict is over it will be expensive for both sides. They might even have to start paying their employees higher wages to make up for the risk. Then both firms will be forced to raise their rates. If they do, Murbard Ltd., an aggressive new firm which has been trying to get established in the area, will undercut their prices and steal their customers. There must be a better solution.

Tannahelp的经理人拨通Dawn Defense公司的电话：“我们有点问题……”解释了事情的经过之后，他指出，如果Tannahelp派去6个人而Dawn Defense 派8个去，那就将会发生一场打斗。有人还会受伤。不管谁打赢，到事件结束之时双方都会付出高昂的代价。他们很可能要提高雇员的工资来补偿这种风险。接着两家公司都会被迫提高收费。假若如此，Murbard Ltd.这家野心勃勃正想插足这一区的新公司就会减低收费，抢去他们两家的客户。定要找到一个更好的解决办法。

The man from Tannahelp suggests that the better solution is arbitration. They will take the dispute over my television set to a reputable local arbitration firm. If the arbitrator decides that Joeis innocent, Tannahelpagrees to pay Joeand Dawn Defense an indemnity to make up for their time and trouble. If he is found guilty, Dawn Defense will accept the verdict; since the television set is not Joe’s, they have no obligation to protect him when the men from Tannahelpcome to seize it.

Tannahelp公司的人建议{zh0}用裁决的方法。他们会把有关我的电视机的纠纷呈交给当地声誉良好的仲裁人，然后照我上面所描述的仲裁程序来办。不同的是，这将由你的保安代理与你所控告那人的代理、或者控告你的人的代理来决定。

What I have described is a very makeshift arrangement. In practice, once anarcho-capitalist institutions were well established, protection agencies would anticipate such difficulties and arrange contracts in advance, before specific conflicts occurred, specifying the arbitrator who would settle them.

In such an anarchist society, who would make the laws? On what basis would the private arbitrator decide what acts were criminal and what their punishments should be? The answer is that systems of law would be produced for profit on the open market, just as books and bras are produced today. There could be competition among different brands of law, just as there is competition among different brands of cars.

In such a society there might be many courts and even many legal systems. Each pair of protection agencies agree in advance on which court they will use in case of conflict. Thus the laws under which a particular case is decided are determined implicitly by advance agreement between the protection agencies whose customers are involved. In principle, there could be a different court and a different set of laws for every pair of protection agencies. In practice, many agencies would probably find it convenient to patronize the same courts, and many courts might find it convenient to adopt identical, or nearly identical, systems of law in order to simplify matters for their customers.
Before labelling a society in which different people are under different laws chaotic and unjust, remember that in our society the law under which you are judged depends on the country, state, and even city in which you happen to be. Under the arrangements I am describing, it depends instead on your protective agency and the agency of the person you accuse of a crime or who accuses you of a crime.

In such a society law is produced on the market. A court supports itself by charging for the service of arbitrating disputes. Its success depends on its reputation for honesty, reliability, and promptness and on the desirability to potential customers of the particular set of laws it judges by. The immediate customers are protection agencies. But the protection agency is itself selling a product to its customers. Part of that product is the legal system, or systems, of the courts it patronizes and under which its customers will consequently be judged. Each protection agency will try to patronize those courts under whose legal system its customers would like to live.

在这样一个社会里，法律是在市场上产生的。一个法庭靠收取裁决费用来维持，它的成功与否取决于它的诚实、可靠和快捷等方面的声誉，以及它所奉行的特定法律系统对潜在顾客的吸引力。仲裁人的直接顾客是保安代理。但保安代理本身就在向它的客户推销一种产品。这产品的其中一部分就是它所光顾的法庭的一套或多套法律体系，它的客户们最终接受这些法制体系的裁决。每家保安代理都会光顾那些他们的客户愿意生活在其法制系统下的法庭。

Consider, as a particular example, the issue of capital punishment. Some people might feel that the risk to themselves of being convicted, correctly or incorrectly, and executed for a capital crime outweighed any possible advantages of capital punishment. They would prefer, where possible, to patronize protection agencies that patronized courts that did not give capital punishment. Other citizens might feel that they would be safer from potential murderers if it was known that anyone who murdered them would end up in the electric chair. They might consider that safety more important than the risk of ending up in the electric chair themselves or of being responsible for the death of an innocent accused of murder. They would, if possible, patronize agencies that patronized courts that did give capital punishment.

作为一个特殊例子，我们来考虑一下死刑的问题。一些人会觉得，让他们自己去冒被判罪的险——不管是应判的还是错判的——而且是判死刑，这风险大于死刑本身可能带来的任何益处。只要可能，他们宁愿去光顾那些支持不判死刑法庭的保安代理。而另外一群人则会觉得，如果人人都知道谋杀他们的人将被送上电椅，他们就能避免潜在的谋杀，就会xxx。他们会认为，人身安全比起自己被送上电椅呜呼哀哉的风险、或者承担误杀无辜的责任的风险都更加重要。只要可能，他们就会成为那些光顾支持死刑的法庭的保安代理的顾客。

If one position or the other is almost universal, it may pay all protection agencies to use courts of the one sort or the other. If some people feel one way and some the other, and if their feelings are strong enough to affect their choice of protection agencies, it pays some agencies to adopt a policy of guaranteeing, whenever possible, to use courts that do not recognize capital punishment. They can then attract anti-capital-punishment customers. Other agencies do the opposite.

如果其中的一种情形或另外一种几乎成为绝大多数，就会使所有保安代理都使用其中一种或另一种的同类型法庭。如果一些人觉得这样好，而另一些人觉得那样好；又如果他们的感受强烈到足以影响他们对保安代理的选择，就会使一些代理采取一种策略，保证只要可能，就会用不承认死刑的法庭。如此他们可以吸引到反对死刑的客户。而其他代理则会反过来做。

Disputes between two anti-capital-punishment agencies will, of course, go to an anti-capital-punishment court; disputes between two pro-capital-punishment agencies will go to a pro-capital-punishment court. What would happen in a dispute between an anti-capital-punishment agency and a pro-capital-punishment agency? Obviously there is no way that if I kill you the case goes to one court, but if you are killed by me it goes to another. We cannot each get exactly the law we want.

两家反死刑的代理之间的争端，当然是拿到反死刑的法庭上去解决；而两家主张死刑的代理将会到主张死刑的法庭去。那么一家反死刑代理和一家主张死刑的代理之间又会怎样呢？显然，不可能说当我杀了你时去的是一家法庭，而当你被我杀了时去的是另一家。我们不可以想要什么样的法律就能各自得到什么样的法律。

We can each have our preferences reflected in the bargaining demands of our respective agencies. If the opponents of capital punishment feel more strongly than the proponents, the agencies will agree to no capital punishment; in exchange, the agencies that want capital punishment will get something else. Perhaps it will be agreed that they will not pay court costs or that some other disputed policy will go their way.

我们可以通过各自的保安代理间的讨价还价来反映我们各自的偏好。如果反死刑的一方反应更强烈，代理们将会同意不用死刑；作为交换，主张死刑的代理们将得到别的补偿。也许它会被允许免交堂费，又或者其他有争议的政策将会倾向他们。

One can imagine an idealized bargaining process, for this or any other dispute, as follows: Two agencies are negotiating whether to recognize a pro- or anti-capital-punishment court. The pro agency calculates that getting a pro-capital-punishment court will be worth $20,000 a year to its customers; that is the additional amount it can get for its services if they include a guarantee of capital punishment in case of disputes with the other agency. The anti-capital-punishment agency calculates a corresponding figure of $40,000. It offers the pro agency $30,000 a year in exchange for accepting an anti-capital-punishment court. The pro agency accepts. Now the anti-capital-punishment agency can raise its rates enough to bring in an extra $35,000. Its customers are happy, since the guarantee of no capital punishment is worth more than that. The agency is happy; it is getting an extra $5,000 a year profit. The pro agency cuts its rates by an amount that costs it $25,000 a year. This lets it keep its customers and even get more, since the savings is more than enough to make up to them for not getting the court of their choice. It, too, is making a $5,000 a year profit on the transaction. As in any good trade, everyone gains.

我们可以想象一个理想的讨价还价的过程——无论针对哪种争端，就象这样：两家代理正在谈判是用反死刑法庭还是主张死刑的法庭。主张死刑的代理计算出，对于它的客户，能够诉诸一个主张死刑的法庭将是价值每年20,000元；如果他们保证在与其他代理处理纠纷时可以有死刑，他们就会从这项服务中得到这笔额外的收入。反死刑的代理也计算出相应的数字：40,000元。它向主张死刑的代理建议提供每年30,000元来换取他们接受反死刑的法庭。主张死刑的法庭接受了这个条件。现在反死刑的代理可以把收费抬高到足以带来每年35,000元的额外收入。它的客户很高兴，因为“没有死刑”的保证更有价值。这家代理也高兴，它每年将得到5,000元的额外利润。主张死刑的代理则把每年的收费减低25,000元。这就使它保住了客户，甚至得到更多客户；因为省下的钱足够补偿他们得不到想要的法庭的损失。它也从这一交易中得到每年5,000元的利润。这就象任何一笔好的交易，每一方都有收益。

（各方所得到的好处是这样分配的：反对死刑的顾客{zg}愿意支付40,000元，但保安代理公司仅收取他们35,000元，这样他们在获得免于死刑的恐惧的保证外还少付了5,000元；反对死刑的保安公司从35,000元中扣出5,000元作为额外利润，将剩下的30,000元支付给原先支持死刑的保安公司，这家保安公司也扣下5,000元作为额外利润，然后将剩下的25,000元补贴给原先主张死刑的顾客，这些顾客原先{zg}愿意支付20,000元来得到执行死刑的保证的，现在则获得了额外5,000元的补贴，这样，四方在这个交易中各得到5,000元的好处。这场交易的实质是将执行死刑的可能性在四方中拍卖——审校者注。）

If you find this confusing, it may be worth the trouble of going over it again; the basic principle of such negotiation will become important later when I discuss what sort of law an anarcho-capitalist society is likely to have.

如果这使你觉得混乱，也许值得你再次重读。这种谈判的基本原理，在我后面讲到一个无政府的资本主义社会可能会有什么样的法律时将会变得重要起来。

If, by some chance, the customers of the two agencies feel equally strongly, perhaps two courts will be chosen, one of each kind, and cases allocated randomly between them. In any case, the customer’s legal preference, his opinion as to what sort of law he wishes to live under, will have been a major factor in determining the kind of law he does live under. It cannot completely determine it, since accused and accuser must have the same law.

有时，如果两家代理的客户反应同样强烈，也许会选择两个法庭，每种一个，而案件在它们之间随机分配。不管是哪一种情形，顾客在法律上的偏好、以及他希望生活于何种法制下的倾向，已经变成了他实际上生活在什么制度下的主要决定因素了。但这还不是全部因素，因为原告和被告必须使用相同的法律。

In the case of capital punishment, the two positions are directly opposed. Another possibility is that certain customers may want specialized law, suited to their special circumstances. People living in desert areas might want a system of law that very clearly defines property rights in water. People in other areas would find such detailed treatment of this problem superfluous at best. At worst, it might be the source of annoying nuisance suits. Thus the desert people might all patronize one protection agency, which had a policy of always going to a court with well-developed water law. Other agencies would agree to use that court in disputes with that agency but use other courts among themselves.

在以上关于死刑的例子中，双方是直接对立的。另一种可能性是，某些客户会要求特殊的法律来适应他们的特殊情况。生活在沙漠地区的人们也许要求法律明确规定对水源的产权。其他地区的人们则会觉得这样仔细地对待这个问题简直是多余的。最坏的是，它还会成为纠缠不清的诉讼的根源。这样，沙漠人就会全都支持一个保安代理，它的政策是只光顾有着完善的“水法”的法庭。其他代理则同意在与那家代理发生纠纷时使用那个法庭，而在他们自己之间的纠纷就采用其他法庭。

Most differences among courts would probably be more subtle. People would find that the decisions of one court were prompter or easier to predict than those of another or that the customers of one protection agency were better protected than those of another. The protection agencies, trying to build their own reputations, would search for the ‘best’ courts.

法庭之间的许多不同可能将会更微妙。人们会发现，某一个法庭的判决结果比另外一些法庭的更快或更容易被预测到；或者某个保安代理的客户比另一些代理的客户受到更好的保护。保安代理们为了建立起他们自己的声誉，会寻找“{zh0}”的法庭。

Several objections may be raised to such free-market courts. The first is that they would sell justice by deciding in favor of the highest bidder. That would be suicidal; unless they maintained a reputation for honesty, they would have no customersunlike our present judges. Another objection is that it is the business of courts and legislatures to discover laws, not create them; there cannot be two competing laws of gravity, so why should there be two competing laws of property? But there can be two competing theories about the law of gravity or the proper definition of property rights. Discovery is as much a productive activity as creation. If it is obvious what the correct law is, what rules of human interaction follow from the nature of man, then all courts will agree, just as all architects agree about the laws of physics. If it is not obvious, the market will generate research intended to discover correct laws.

针对这样的自由市场中的法庭，会招致几种反对意见。首先是，法庭可能会把公正出卖给出价{zg}的人。但那将是自毁性的；除非他们维持住诚实的声誉，否则他们不会有一个客户。这就与我们现存的法庭不同。另一种反对意见是，法庭和立法机关的责任是去发现法律，而不是发明法律。不可能有两条万有引力定律的相互竞争，那为什么要有两条财产法的竞争呢？但是，恰恰存在着关于万有引力定律的争论，也恰恰存在着关于产权的恰当定义的争论。发现和发明一样都是富于创造性的行为。什么是正确的法律，人类的相互关系遵从人性的什么规律，如果这些都是很明显的，那么所有的法庭都会赞同它们，就如同所有建筑师都赞同物理上的定律一样。如果这些都不明显，那么市场就会为了发现正确的法律而建立起研究机构。

Another objection is that a society of many different legal systems would be confusing. If this is found to be a serious problem, courts will have an economic incentive to adopt uniform law, just as paper companies have an incentive to produce standardized sizes of paper. New law will be introduced only when the innovator believes that its advantages outweigh the advantages of uniformity.

另外还有一种反对意见，就是一个社会中有许多不同的法制制度将会造成混乱。如果人们发现这是一个严重问题，法庭就会有一种经济动机，去采纳统一的法律，如同造纸商们生产标准规格纸张的动机。新的法律只有在其倡导者相信它的有好处大于法律统一的好处时才会被引进。

The most serious objection to free-market law is that plaintiff and defendant may not be able to agree on a common court. Obviously, a murderer would prefer a lenient judge. If the court were actually chosen by the disputants after the crime occurred, this might be an insuperable difficulty. Under the arrangements I have described, the court is chosen in advance by the protection agencies. There would hardly be enough murderers at any one time to support their own protective agency, one with a policy of patronizing courts that did not regard murder as a crime. Even if there were, no other protective agency would accept such courts. The murderers’ agency would either accept a reasonable court or fight a hopeless war against the rest of society.

对自由市场法律{zd0}的反对意见，就是原告和被告在通常的法庭中不能达成一致。显然，一个谋杀犯会希望判刑宽大。如果实际上是犯罪发生后才由争执者双方去选择法庭，这就会有难以克服的困难。在我所描述的程序之下，法庭是由保安代理预先选择好的。在任何时候，都很难同时有足够多的谋杀犯去支持一个他们自己的保安代理，这个代理的政策是支持不把谋杀当做犯罪的法庭。即使有这样的代理，也不会再有其他的保安代理会接受如此的法庭。谋杀犯的代理就只有去接受一个合理的法庭，或者与其余的社会去作无望的对抗。

Until he is actually accused of a crime, everyone wants laws that protect him from crime and let him interact peacefully and productively with others. Even criminals. Not many murderers would wish to live under laws that permitted them to killand be killed.

如果不是被控有罪，谁都希望法律保护自己免受罪犯的侵害，以便自己能与别人和平、互利地往来。即使是罪犯也一样。并没有太多的xx犯会希望生活在既允许他们去谋杀、也允许他们被谋杀的法律下。