How to establish justice (part 1).

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.

9 thoughts on “How to establish justice (part 1).

  1. quasibill June 28, 2007 at 09:20

    Good stuff. I especially appreciate the point about not knowing our rights – I’ve been coming to the conclusion that this principle is perhaps the bedrock foundation of the rule of law. Once you detach law from common understanding in a given population, you have moved from law serving the population to law as a means of ruling a population. I’m toying with the idea that in an anarchy, the rule of law wouldn’t reduce down to formal logic, but would rather reduce down to argumentation over the morality of the situation. Not sure how comfortable I am with that last conclusion yet, but it’s what I’m thinking about right now.

    Another good point is that there shouldn’t be a distinction between the judge of the facts and the judge of the law. That’s an artifical distinction that breaks down in many areas – there are many instances of what are called “mixed” questions of law and fact.

    One point though: All federal judges are appointed. States have varied processes by which judges achieve their position. For example, New Jersey follows an appointment system similar to the federal scheme. However, in Pennsylvania, all judges are directly elected to their position.

    Note that this doesn’t detract from your argument, which is one I make all the time: appointment doesn’t remove the appointee from political pressures, it just makes sure the appointee is someone who is plugged into the political machine.

    Looking forward to your next post on this topic.

  2. Francois Tremblay June 28, 2007 at 16:53

    “Once you detach law from common understanding in a given population, you have moved from law serving the population to law as a means of ruling a population.”

    I like how you said that. That’s an excellent quote.

    “However, in Pennsylvania, all judges are directly elected to their position.”

    I see. The point is well taken. But they are still subject to the democratic process, which is almost as bad.

  3. quasibill June 29, 2007 at 09:35

    “But they are still subject to the democratic process, which is almost as bad.”

    Truly, although I tend to think it is just as bad. The problem I tend to run into is people who think appointment removes the appointee from the realm of politics.

  4. taylorteach September 20, 2007 at 22:26

    I enjoy reading your blog, but I admit to being daunted to make a comment since I’m not as knowledgeable as many on the subject. But you said something in this post that I haven’t seen written before, but that I had an experience with last summer:

    “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.”

    I was summoned to jury duty, and went down to the courthouse (giving up badly needed income, I might add) for two days of my appointed week before the judge just excused me from jury duty.

    This happened because they introduced 3 cases to me in the two days, and all were marijuana related. Then the judge asked if anyone had any moral or philosophical reason why they thought they couldn’t be objective on this jury, and I had to raise my hand.

    I personally believe all drugs should be legal, but knowing that most of the citizens don’t feel that way, I think I could be fair on a cocaine case or similar. Just because I believe something doesn’t mean everyone has to. But regarding the marijuana cases I believe the law is unjust because 1) it punishes the seller and not the user so that enforcement is harshest on those who are poor since those who perceive that they have a shot in the legitimate economy won’t deal drugs 2) people’s blood streams are their own business 3) the drug isn’t dangerous but most importantly for the jury situation 4) most Americans don’t agree with the law. Governments derive their just powers from the consent of the governed. Without the consent of the governed, the law is unjust.

    But nobody was asking me about that. All they wanted me to do was to say, “did this guy have X in his car or not?”

    The law is unjust. I can’t be a part of enforcing it. The judge seemed annoyed. But what great power lies in the hands of the state when they can just exclude me from the jury because of my belief. They decide the really important things, and I just decide the “facts” of the case.

    I realize now that maybe I shouldn’t have said anything and just went forward, finding myself always really stumped and hard to convince.

  5. Francois Tremblay September 20, 2007 at 22:30

    Thank you for the comment and story!

  6. jdavidb September 27, 2007 at 10:29

    I was also struck from a jury pool this week, after only serving one day. I’m not certain I could personally sit in judgment on ANYONE unless asked by both sides to arbitrate a dispute. So I was a nervous wreck about being asked to do something I consider wrong. Moreover, I figured the likelihood of being asked to participate in punishing someone for a crime that did no harm to any of his neighbors (i.e., drugs or other victimless crimes) was high, and I do not want to participate in infringing the rights of someone who has not infringed the rights of anyone else.

    I decided that if forced into the jury, I might be able to participate as long as a REAL crime had been committed (an infringement of somebody else’s right to life, liberty, and/or property), and guilt of the accused was demonstrably certain (the law wants to set the threshold for that, but as a person who wants to be moral I must set the threshold for that myself, even if I have to go to jail for disobeying the law on the subject), and the punishment fit the crime. Under any other circumstances, I would have to find the accused innocent to be sure I didn’t participate in doing something wrong to someone who didn’t deserve it. I would have to do so even if threatened with legal penalties.

    On top of all this, unlike you I am a Christian, so I believed I would one day account to God for my choice.

    But then just before we were called into the court room I was thinking about how to determine if a punishment fit the crime, and the whole house of cards collapsed. Because the only way to really determine this is free market justice, and this was demonstrably not the case. I wouldn’t even know if the victim wanted the accused punished, or what the victim thought was appropriate. In our jury questionnaire, we were asked to rank the relative importance of three purposes of criminal justice: rehabilitation, deterrence, and punishment. But I believe that the true purpose of a justice system would be RESTITUTION, and clearly this was not one of the state’s three goals. A fine paid to the state for a crime would just be giving a cut of the crime to the state criminals. An imprisonment to the state for a crime would just be the state criminals enforcing their monopoly on crime. Therefore, no possible penalty that the state was asking for would fit the crime.

    The district attorney asked if anyone had a problem with the fact that we’d be asked to judge guilt or innocence but not to set the punishment, and I said “It worries me. I don’t want to do anything wrong, and if a man receives a punishment that doesn’t fit his crime, that’s wrong, and I don’t want to participate in that.” After I started sparking doubt in other jurors, the judge finally laughed, told us the death penalty wasn’t involved (ha, ha), and asked the DA to tell us the potential range of sentences. In my mind, I was thinking 60 days in jail for the alleged crime might be more or less “fair,” to give the victim some kind of feeling that justice was served, but it turned out the range was six months to two years in prison. Ouch.

    Later the DA asked if we had any religious qualms about sitting in judgment on another person. Bingo! I said I did. I said I wasn’t certain, but that I’d spoke earlier about right and wrong and that I believed I’d be accountable to God for my choices. I was asked about my religious background and beliefs. Know that I have struggled with this as a religious issue since at least 1996. :) Finally questions went the route of asking if this would affect my ability to render an objective judgment, and I said it might.

    After the whole jury was questioned, I was summoned back into the courtroom privately by name, and asked a couple of short yes or no questions about whether or not my beliefs would affect my judgment. They certainly would, so I just said YES. I wasn’t selected for the jury.

  7. Jesse November 14, 2008 at 13:47

    taylorteach brought up the issue of the law in terms of what laws are administrated. in his jury duty story, the “facts” of the case imply that “the law” is true, whereas, taylorteach defends his view of said “law” as inherently unjust and therefore the “facts” become irrelevant. (which is completely consistent in the process of determining guilt or innocence)

    i have been taught that the true purpose of a jury and a trial is to determine what is relevant, true, and most just. in contrast, taylorteach has shown that the purpose of the jury only serves to re-enforce what the administrator of “justice” has already decided what is relevant, true, and just.

    isn’t the right of the jury primarily understood as having the authority to strike down unjust decrees like the one described above? what purpose does a court then serve other than to put on display a show of power? doesn’t this place the idea of justice on the same line as entertainment?

  8. Anthony September 15, 2011 at 15:21

    Have you ever thought that, the justice system doesn’t reflect any sort of justice whatsoever because, maybe, you don’t actually live in democratic states, only states that appear to be democratic? By the way, Free-Market ‘Anarchy’ isn’t Anarchy. The whole point of Anarchy is to not have ‘Codes of Conduct’, which is just another pretty term for the idea of law. Now the inherent values of man, which you mention, is another story. Of course, we cannot escape our inherent values, however, it may appear that way in today’s world because people’s inherent values and, therefore, their behavior is manipulated by and through the monetary system, or dollar standard. But again, in a world of pure Anarchism, being JUDGED by another implies law. Anarchy is without law, beyond law. Consequently, in a world of pure Anarchism, the only acceptable judge of me would be myself, you of yourself, so on and so forth. Nevertheless, if I made contact with somebody, or harmed somebody, they would be entitled to react and respond; that would be their natural right, just as it would be my natural right to do whatever pleases me…

    • Francois Tremblay September 15, 2011 at 15:31

      “Have you ever thought that, the justice system doesn’t reflect any sort of justice whatsoever because, maybe, you don’t actually live in democratic states, only states that appear to be democratic?”

      What does democracy have to do with justice?

      “But again, in a world of pure Anarchism, being JUDGED by another implies law. Anarchy is without law, beyond law.”

      Judgment does not imply law, no.

      “Consequently, in a world of pure Anarchism, the only acceptable judge of me would be myself, you of yourself, so on and so forth. Nevertheless, if I made contact with somebody, or harmed somebody, they would be entitled to react and respond; that would be their natural right, just as it would be my natural right to do whatever pleases me…”

      Yes, of course.

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