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.
Make use of the following additional resources to expand knowledge and understanding of the topic covered in this unit.
The entire unit, including all additional resources, can also be downloaded as a workbook to be used offline.
If review questions have been completed and additional resources have been perused, progress to the next unit.