How to establish justice (part 2).

Spooner put a strong emphasis on natural law, and its necessity for true justice:

If justice be not a natural principle, governments (so-called) have no more right or reason to take cognizance of it, or to pretend or profess to take cognizance of it, than they have to take cognizance, or to pretend or profess to take cognizance, of any other nonentity; and all their professions of establishing justice, or of maintaining justice, or of rewarding justice, are simply the mere gibberish of fools, or the frauds of imposters.

But if justice be a natural principle, then it is necessarily an immutable one; and can no more be changed- by any power inferior to that which established it- than can the law of gravitation, the laws of light, the principles of mathematics, or any other natural law or principle whatever; and all attempts or assumptions, on the part of any man or body of men- whether calling themselves governments, or by any other name- to set up their rule of conduct for any human being, are as much an absurdity, an usurpation, and a tyranny, as would be their attempts to set up their own commands, wills, pleasure, or discretion in the place of any and all the physical, mental, and moral laws of the universe.

His position was that the conception of what is just and unjust is part of human nature, and thus the province of every single individual. If this is true, then the State and its laws are not only self-serving, but wholly useless. If humans have a general understanding (regardless of whether it comes from evolutionary adaptation or as part of the maturation process) that killing or hurting others is wrong, that stealing and cheating is wrong, and that everything else is other people’s business, then we have a Market Anarchist justice system right there. As long as people are permitted to live the way they want, they should only be held to their contracts, and held to respect the other individual.

The principles that must be enforced by a system of justice are very simple and widely understood. They can be written down very easily:

Liberty is good. Hurting other people (killing, maiming, defrauding) is bad. Property is acquired by using a natural resource and then by voluntary trade. Respecting your contracts is good. Breaking your contracts is bad. If you’re guilty of a crime and refuse to pay up, you can be declared an outlaw.

This is all pretty simple. A supermajority of people would agree with all of these points, even if some may agree to also include exceptions. That is fine. Granted, it does not answer to technical points such as the establishment of a contract, but customary rules generally apply (i.e. people still have an idea of what a contract is and is not).
Where, you may wonder, are the freedom of courts and court rules included? If someone is threatened to participate in any given court system, without a prior contract, that would represent a breach of one’s liberty. No one should be accused of refusing to be coerced, if natural law is followed.

To the points listed in the previous post, I would add the following, based on Market Anarchist theory. A justice system should:

7. have juries and justices that have previously agreed to be part of the justice system.

No justice system worth of that name should be permitted to use violence against people in order to make justice. This point may seem to clash with point 1 (juries as random samples of the population). It may be the case that relying on consent biases juries and justices.

When two principles clash, we must give priority to the one that breaks the least important Market Anarchist rule. And the most important, the most fundamental Market Anarchist rule is: voluntary action is moral, coercion is immoral. If point 1 demands that we use coercion in order to force people to be juries or justices, then we must reject its coercive aspects. Point 7 therefore must have priority over point 1. Remember that we are talking here about a generalized judiciary, which binds everyone. If it binds everyone by default, then consent cannot be given a priori, and must be made explicit by the participants.

8. have a tradeable right to sue and to damages.

This was a characteristic of the Icelandic system. We can see how this could be applied successfully in our time also. Suppose you are an average Joe who gets wronged by some big business or organization, or gets sued by said business or organization. Instead of putting your own resources and life on the line, you could trade your right to sue or right to damages to another big business what specializes in trials. That way, justice would be done, and the risk to yourself is minimized. You can’t receive any damages, but you also don’t have to pay for lawyers, as well as pay possible penalties.

9. not start any trial where there is no complaint.

No “the people versus” nonsense. If no one wishes to go through a trial to get justice, then no one should have to. Pacifists especially should be allowed to pursue this way of life if they so desire.

10. yield to the individual’s choice of representation and arbitration.

11. be oriented towards dispute resolution, not confrontation; restitution, not punishment; universality, not stratification.

Remember the role of the justice system: to resolve disputes peacefully, to provide for restitution, to maintain social cohesion and, in general, to try to leave society in a better place than it was before the crime. Every part of the system must be oriented towards those goals.

For instance, jails should be only reserved, at best, for those people who cannot live in society. Jails are a purely punishment mechanism, leave society worse off, break social cohesion, and are certainly not used in a fair manner (celebrities, for one thing, do not live in the same conditions as the rest of the prisoners).

If every element of the system seeks to follow these goals, and is crafted in accordance with the 11 principles I have proposed here (or at the very minimum the 6 principles from the Magna Carta!), then it will be a justice system we can be proud of. Until then, “justice” as we know it will remain a hollow farce.

2 thoughts on “How to establish justice (part 2).

  1. quasibill July 2, 2007 at 10:43

    I’ve been moving away from the term “natural law” because the issues of “theft” and “property” tend to be too prickly. Too many variations and exceptions exist and have existed to claim some sort of “naturalness” or supreme being ordained nature. I’m starting to think the true basis is either a) natural rights in self-ownership and to the fruits of one’s labors, or b) a natural “law” of nothing more than the Golden Rule (this is a train of thought started by Shawn Wilbur).

    From either of these starting points, mankind has reasoned his way to many diverse systems that have varying success in satisfying these underlying values. Through trial and error, as well as reasoned analysis, we can point to some critical shared points among the more successful ones. But the subjective nature of values indicates that there are many different tradeoffs that can be made amongst voluntary participants (for example, note the voluntary communities of the Amish and Mennonites) – especially when they are based on a fundamental value or values that is (are) consistently applied and ingrained into a given culture.

    I like the rest of your points, and just want to point out that the common law term for 8. is champerty. It is illegal in most of the U.S., except, of course, if you are a plaintiff’s lawyer (contingent fees are, of course, a form of selling your claim) or an insurance company (subrogation rights in an insurance policy are also a form of purchasing choses in action).

    I think the restriction of champerty is directly lucrative to both sets of privileged actors. In each case, there would be more competition in the market for buying the claims, and less need for the specialized services of the currently privileged actors, especially the insurance companies – if you had a reasonable opportunity to sell off any claim you accrue, there would be less need for insurance in the first place.

  2. Francois Tremblay July 2, 2007 at 16:56

    Excellent point about champetry. Thank you for the word also.

    As for the variety of solution that arise naturally, you are of course correct on that point. Spooner’s claim, as I understand it, is not that everyone is infallible as regards to justice- that would be silly- but rather that everyone can roughly understand what is just and what is not, and that with some formalization and study one can easily gain an excellent understanding of its general principles.

Comments are closed.

%d bloggers like this: