In my previous post, I described the sorry “justice system” set up by our democratic States, and how nothing about it reflects any sort of “justice” whatsoever. It is in such a sorry state, of course, because the ruling class cannot afford to be sued for its own extortions, kidnappings and murders, nor those of its rich and powerful friends, and thus must hold control over the administration of justice and pervert it for its own benefit, as it perverts all other institutions.
What should a justice system be based on, if not the arbitrary “law” of the ruling class? Obviously, it should be based on principles which individuals agree on. What does that mean in practice?
If we live in a pure Market Anarchy, it should be based on the codes of conduct that individuals agree to, and which are mediated by what we call “agencies” (an umbrella term for any organization, whether a business, a commune, a co-op, a private neighbourhood or private city, which offers a code of conduct and its enforcement). Everyone should be free to live the way they desire, and agencies to mediate possible disputes by presenting the courts with pre-arranged common rules in order to determine innocence or guilt.
On the other hand, if we live in a federated system (à la Bakunin, or like the Icelandic system), there may yet be a need for a global justice system, against which, of course, private general and specialized courts could compete. Or if we still live under a State, but have the opportunity of forcing the State to acquiesce to our demands (an opportunity which is very unlikely of ever repeating itself), we may want to impose a replacement to the State’s clowns.
In this case, the Magna Carta provides us with the basic requirements for such a system. I have listed the most important requirements, as explained by Lysander Spooner in his essays on justice. A proper justice system must:
1. have juries chosen randomly from the people, not from a biased sample.
If you’re going to have a proper trial, you can’t pack the jury with, say, total simpletons, or use criteria determined by each party to the dispute, as our current system does. A jury must be composed of a sample such that it can be said to represent the general opinion at that point in time, and thus the understanding of law held by the the general population at that point in time.
2. have juries which judge the validity of the law.
If juries are not allowed to judge whether a law is valid or not, then the ruling class is free to legalize or criminalize anything they want, including the extortions, thefts and murders they commit, and those committed by their friends, against the interests of the general population. On the other hand, if juries are allowed to reject “laws” they do not consider just, then natural law (the understanding of what is just, that we all generally agree on) will prevail over arbitrary State law.
In this we must follow the principle juris ignorantia est cum jus nostrum ignoramus (it is ignorance of the law when we do not know our own rights). No system which refuses to acknowledge the right of nullification can be said to be valid.
3. have justices (judges) which are chosen by the people, not by government.
In our current system, all State judges are appointed, and the government can easily stack the deck in its favor. State judges are generally political activists, and belong to the dominant political party of that state. Federal judges are chosen by the executive, and thus share its positions.
4. not charge any money to any party before or during a trial.
A justice system with monetary barriers to admission, can thereby exclude the population at large from using its services.
5. throw out the statist principle that “Ignorance of the law is no excuse.” Only those laws which are commonly known and agreed upon can be used as standard.
This is an extension of point 2. If natural law should be the sole standard of what a man should be found guilty of, and everyone is theoretically conscious of natural law, then by definition no one is ignorant of the law: it is part of who we are. Only that which is acceptable at large should be our standard, and our standard should be nothing but what is acceptable at large.
6. have juries authorized to fix limits on penalties.
If penalties are present, then they should not be so disproportionate that they handicap the poorer against the richer, or the younger against the older, or gratuitously hurt anyone beyond the reasonable.
Spooner also notes that juries should not determine guilt, but merely determine lack of guilt.
On my next post, I will describe natural law, and go through more requirements of justice based specifically on Market Anarchist theory.