Examine the meaning of justice and the requirements for its fulfillment.
Compare the justice system that exists at present with one that would exist in a free society.
Explore the idea of protection insurance as a means of paying for justice services.
Justice is perhaps the most vital of all services needed in any society, for which it is safe to assume there would always be a demand.
What “justice” is
The American jurist Benjamin Cardozo defined it as follows: “Justice, to which law in its making should conform, is a concept by far more subtle and indefinite than any that is wielded by mere obedience to a rule. We appeal to it as both a test and an ideal. It may mean different things to different minds and at different times. Yet when all is said and done, justice remains, to some extent — an aspiration . . . a mood of exaltation . . . a feeling for what is fine or high.”
Cardozo may have been a fine poet, but he was a lousy jurist. This is not even a definition at all, let alone anything close to what ‘justice’ is all about. That he could rise high in his profession tells us bad news about his profession.
Justice is actually a way to right wrongs.
Reasoning from the basic premise — to own and operate one’s own life exclusively — it follows that if everyone observes that, there will never be any occasion to use force, that is, to oblige someone else to act against their wishes. But suppose that happens anyway; A violates the self–ownership of B. What then?
Clearly, having the right to life means that B has the right to defend that life and all its attributes, and so is entitled to use defensive force to prevent the aggression — or, if it is already over, to restore their situation to where it was before the attack began. And if they need help, they are just as clearly entitled to hire it.
That kind of help is what is called a “justice system.” The purpose of a justice system is to right wrongs.
Further, there are bound to be accidents; inadvertent violations of rights. If the parties affected can not resolve the matter, again a system will be needed to arbitrate.
Today’s so–called justice system has little to no relationship with the righting of wrongs; it is a monstrous distortion of that ideal. Even a casual observer must notice:
Its manifest failure to convict most of the guilty;
its manifest failure to avoid convicting any of the innocent; and
its manifest failure to compensate any of the victims.
Before comparing the present reality to the ideal one, the various components of a justice system need to be identified. Such a system must include the following components:
Detection — in case the identity of the alleged rights–violator is not known.
Apprehension — to bring them to a court of justice regardless of their wishes.
Trial — to ensure both parties freely present their cases to an impartial arbiter.
Disposition — a judgement, defining what will constitute a resolution.
Monitoring — a way to ensure that judgement is carried out.
How justice functions
Contrast between today’s government monopoly and the kind of justice system that would probably evolve in a free–market society.
To enforce government laws.
To restore the damage done to the individual.
Anyone suspected of breaking a law — with or without a victim.
Only those accused of harming a victim.
By taxpayers, under threat of force.
By plaintiffs, then by the losers.
Except for private investigators, whom only the rich can afford, detection is monopolised by government police forces, all of whose members are motivated by the wish to play safe and be good bureaucrats. With no competition, effectiveness is pathetic: In New York City, only three quarters of all murders are solved by an arrest — in a good year.
Detective agencies would be retained by plaintiffs on a contingency basis. Interagency agreements would facilitate information sharing and contracts would provide for full payment only upon the subsequent trial outcome — ensuring as far as feasible that the right perpetrator is brought to court.
Accused perpetrators are locked up and treated like scum, without recourse. Police and prosecutors may lie brazenly to extract a ‘confession,’ self–ownership is regarded as a nuisance, evidence is routinely planted.
Those arrested would retain their full self–ownership and if treated with anything but the utmost respect would be free to sue for mistreatment — and expect to win big damages if successful — regardless of the outcome of the primary trial.
Trials occur only in courts monopolised by government, which employs and therefore heavily influences the judge, the prosecutor, the defence attorney, the marshals, and even the janitor. Juries are selected under government supervision, and the prosecutor spends as much stolen money as he sees fit to select one likely to favour their case. The judge controls what counsel may say, and what evidence may be seen by the jury. The entire proceeding is a farce, especially in cases where the government has an interest in the outcome. Even when it does not — for example, the Simpson case — the outcome quite often acquits the guilty and convicts the innocent.
Trials would only be held in courts operating competitively for profit, trading on their reputation for integrity and fairness as their prime asset. Procedures — rules of evidence, jury or not, and so on — would be set by agreement between court and adversaries, with a jury trial being the default. No court would accept a case in whose outcome it had an interest — so as to preserve its priceless reputation for integrity. No case would reach a court except on the complaint of an actual victim, that is, a person whose self–ownership has allegedly been harmed. ‘Victimless crimes’ would therefore never appear.
The victim, if any, is dismissed — perhaps with a word of thanks for their testimony but never with any compensation. The convicted defendant is imprisoned. All taxpayers — including the victim — pay for their accommodation, under threat of force. They are never rehabilitated. The lawyers do nicely, and the gullible public is told by a brainless media that ‘justice has been done.’
If the defendant is found responsible they will be ordered to compensate their victim, so as to restore them to their former state as far as is feasible. They will also be required to pay for the costs of their detection, apprehension, and trial. There are no taxpayers, nor any attempt to burden others with any costs. Every party therefore wins — except the aggressor, who loses in strict proportion to the damage they caused.
Convicts are kept in government cages, thereby destroying what may be left of their potential for productive living. Taxpayers are robbed of billions a year to pay for it, and a substantial staff of guards is employed in the soul–destroying work of keeping them imprisoned.
Provided the compensation ordered is delivered on time, no particular restraint would be needed except in a few rare cases — rape or murder, for example — and so prisons in their present configuration would not exist. Electronic tracking, such as ankle bracelets, might be used, but only for the primary purpose of ensuring that restitution is made to the victim. Aggressors would therefore stay productive and have maximum incentive to pay off debts to victims and get on with normal life.
‘Higher’ government courts review and sometimes reverse erroneous decisions, but since all such judges are also government employees this provides little protection when government was a party to the case. The United States Supreme Court is not even obliged to hear appeals and in fact dismisses ninety–five percent of those presented without being heard. If reversals are ordered, there is still no compensation provided to the person wrongly convicted, even after years in a government cage.
At every stage in the process, all involved know they are personally responsible for errors and so will tend to make fewer. Each will be liable to the victim, if they cause an accused but innocent person to suffer.
Government ‘justice’ has little to do with real justice at all, it is a monstrous offence to any decent person’s sense of what is right and wrong, and any free–market alternative like the one outlined would be vastly superior.
It must however be added that the government monopoly probably has a sinister purpose: To attempt to give a moral validity to some of the most outrageous acts of government. For example, courts frequently convict those who break its tax laws. Tax is no more than legalised theft, so to convict someone of resisting the theft is an outright reversal of true justice. Worse: There are cases on record where such non–taxpayers were convicted even when no tax law could be identified, which they might have broken. In such a case as that — for example, in the 2005 Schiff case — the “court” was being used as an instrument of legislation, in flagrant breach of supposed Constitutional powers.
Sometimes it is said that if government must be shrunk, it must retain the justice function at least. On the contrary, if any function must be removed from its grasp before all others, justice is the one. It is far, far too important a subject to leave to such a gang of thugs.
An objection may have come to mind when studying the table above: That is all very well for the wealthy, but how can an ordinary person afford to hire investigators and lawyers and court services? Fair question.
The free market would respond to that need, probably in the form of insurance services. The risk of being damaged by an aggressor in a free society would be low — especially by a deliberate act of aggression. Therefore, the event would be suitable for insurance. The individual would pay a small premium, and the insurer would provide a range of services in the event they were robbed or harmed in some way.
Those services might even include a kind of blanket settlement. The insurer would consider the claim and decide that, yes, it is a fair one, and they will now compensate the client, take their client’s deposition as evidence, then go find and sue the perpetrator themselves and keep such restitution as the court orders the aggressor to pay. Naturally, the insurer would arrange the figures so as to leave themselves a profit, and they would run the small risk of being unable to collect — if, for example, the aggressor had caused damage far beyond their ability ever to pay off.
The point is not to say that such an arrangement would for sure be the norm, but that — being a free market — the market would produce one or more solutions to such reasonable needs. Free–market justice would in such ways serve the needs of all members of a free society.
Make use of the following questions and the associated feedback to check knowledge and understanding of the topic covered in this unit.
What is a “victimless crime”?
It is certainly something a politician or his lawyer dreamed up, but unfortunately it is no figment; harmless defendants are being punished every day for committing them. Try again, please.
It looks like an oxymoron, but actually it is not; in its nature, government can make all manner of harmless behaviour into a 'crime' and frequently does. Try again, please.
Correct! It is a 'crime' because a law is broken, but nobody suffers harm — except the vanity of the politicians who want their whims obeyed. Check the other answers and continue.
Such language may be used by the politicians who get such laws enacted, but it is not part of their jobs to try to enforce such standards even if they could be accurately measured. Try again, please.
Defendants unable to afford a good lawyer today are at a severe disadvantage. In what ways would a free–market justice system improve their situation?
Right. This would greatly reduce the number of cases brought.
Right. Today a pro-se defendant is tolerated but bullied; the government court sides with the government 'expert'.
Right. Being in a free but hungry industry, insurers would sell hard and if they chose not to buy, for what would be a very modest premium, the responsibility would be their's.
Right. The court would prosper in its competitive environment only by gaining and preserving a reputation for judging fairly and equitably.
Why would a for–profit, competitive detection industry be likely to locate and apprehend more suspects than a dedicated, dispassionate professional police force such as we have today?
No. It is exhaustively proven as well as intuitively obvious that profit-seekers do better than seat-warmers in every industry, every country, and every time. Go study why the Soviet Union collapsed.
Exactly. The two sets of people may be equally talented, but the profit-seekers have a vastly superior motive. They will find a way, because they are hungry and greedy.
Good point. Today bounty-hunters can make a good living, even though they are tightly constrained.
If there are several courts competing for business, how could victim B ensure the appearance of suspect/aggressor A in the court of their choice?
Yes, and that will be a common case. Disputes in a free society are more likely to arise through mistakes or misunderstandings arising from a contract, than from naked aggression.
Correct. B would be compelling A, so they would be vulnerable in that way and yet again, a strong incentive would exist to reach agreement.
The ultimate sanction in a free society, if a defendant refused to respond to an accusation, would be that other members, noting that they are untrustworthy, would no longer trust them. Their ability to do business would plummet and they would most probably leave it.
Another reminder that the free market would invent the best resolution to any problem. Different and better ones may well evolve in practice.
This answer would be given by anyone determined to prevent a free society, whose mind against it is already made up. Nonsense; the other four answers prove it wrong.
Show some reasons why a trial is likely to be much more fair in a free–market justice system than in one operated by government.
Correct! Court managers will strive for a reputation for fairness above all, so as to succeed in future.
If such a connection should come to light, the disputants will demand — not 'request!' — removal and upon refusal will simply walk away to a competing court.
In practice a few alternative sets of rules may emerge, and the disputants would choose from Sets G, E, F, G or H — but they could also custom-build a set for the court to follow. Neither will feel unfairly constrained.
Freedom of speech will be the cardinal rule, and the contrast with today's monopoly will be huge.
How would appeals be handled, given that competing courts would exist? Who would be the “final arbiter”?
The only 'clear' part of this answer is that the responder has failed so far to think outside the box! Try harder.
Just so; and the improvement over today's monopoly would be immense. Today, nobody gets to choose an appeals court — it is set by an accident of geography, called 'Circuits'. And beyond those, the United States Supreme Court has no obligation to consider any ultimate appeal that does not catch its interest, and actually rejects all but five out of one hundred.
It is often observed that victims demand vengeance rather than restitution. Suppose Plaintiff B accuses Aggressor A of murdering her brother, and demands the death penalty instead of monetary compensation. How will a free–market court probably resolve that, if the case is proven?
Correct. The moral implications of executing anyone might or might not carry weight with a private court; but the consequences would. All know very well that perfect certainty is impossible, yet death is final. That fact alone, which fails to impress politicians who carry no responsibility, would powerfully impress every court company that wished to stay in business in the long term.
For once, this statist has a point. There are some things a market cannot do; it cannot wage war, and it cannot take revenge. It is to be hoped that this unhealthy demand will quickly wither.
Is an award of monetary restitution to the victim an adequate way to dispose of all cases?
Right. It suffices to pay medical expenses, restore stolen goods, provide some compensation for emotional loss. Better the aggression had never occurred, but there is no closer way to right the wrong once it does.
Obviously, none; but until the dead can be restored to life, this is the next best thing — and infinitely better than the zippo provided as victim restitution by the government monopoly.
Correct. If and when perfection becomes available, the free market will find the fastest and most economical way to deliver it.
Make use of the following additional resources to expand knowledge and understanding of the topic covered in this unit.
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