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Our job, part IVa: Principles for a justice system

For this post, I owe everything to the fine people of The Living Freedom Forums, including TLF (especially), CX, S, BSC, ATX, TB, and RJT.

I was struggling to start this segment of the series because I was stuck in the forms of justice (juries or no juries, formal or customary, tribal or institutional, adversarial or based on mediation, etc.). Forum members immediately changed the subject to principles of justice. They were right and their contributions broke the logjam in my brain.

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“Rightful Liberty is unobstructed action according to our will, within limits drawn around us by the equal rights of others.” — Thomas Jefferson

In the future now being built destroyed for us, states, counties, and communities will be fragmented. Our already-broken institutions will collapse. Something, good or ill, will replace them. One of the most difficult systems to recreate will be some means of delivering justice.

In some places, at some times, “justice” may be no more than retribution or mob violence, including violence against the innocent-but-unpopular. But thoughtful people will have the opportunity to build new structures that not only deliver real justice, but overcome fundamental errors of the old, broken institutions.

Such systems will not only deliver justice to the wronged and the wrong-doers, but will enforce the basic principles of individual rights on which entire healthy societies will grow and stand.

But — as we shall see! (and as you already realize if you inhabit the real world and not an ivory tower) — even a system based on clear principles still isn’t easy in implementation. And principles, when you look closely, aren’t always as brilliantly clear and non-contradictory as the denizens of ivory towers like to imagine.

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An attempt at the fundamentals of a newborn justice system might begin this way (feel free to argue in comments):

All laws must be clear, understandable, and fairly applied. Laws that are vague, incomprehensible, or selectively applied are null and void.

No one has the right to initiate force against another person or another person’s property, nor to delegate or authorize initiation of force. Force may be used only in self-defense or in response to a previous initiation of force.

If there is no victim, there is no crime. Crimes are acts of aggression, theft, or fraud against specific individuals or groups of individuals. “Society” or the state or some other collective body cannot be a victim, nor can any individual who merely claims indirect psychic harm.

If there is no intent, there is no crime. The ancient concept of mens rea applies. Harms committed through negligence or accident may be compensated through mediation or arbitration, but they are not criminal matters.

The burden of proof never falls on the accused. The accused is innocent until proven guilty. (Though this can be difficult in implementation.)

Restitution is a greater goal than punishment. Making the victim whole, to whatever extent possible, is the greater part of justice. Punishment should apply primarily where restitution isn’t possible and/or the criminal is too dangerous to live n civilized society.

Victims, or their heirs and assigns, should have a major and direct say in the disposition of the criminals responsible. In the case of murder, this may include capital punishment inflicted by the victims, heirs, or assigns, or indentured servitude to the victims, heirs, or assigns.

Those who violate the rights of others under color of law or “authority” are heinous criminals and are subject to all the conditions applied under this code to any other criminals.

The same laws apply to everyone. No exceptions. No one is “above the law” or exempted from any provision of the law by virtue of class, position, or office held.

Juries (if used) are to be chosen at random among adults in the community covered by the given law code.

Judges (if used) may be chosen by various methods, but should never be career jurists or politicians. Judges who use their position to violate natural rights of individuals are as guilty as any other criminals.

—–

Already see omissions, errors, or points to quibble with? Yeah, me too.

What about negligence so severe and deliberate it amounts to harmful intent? Let victims have direct say in their perp’s fate? But that could mean cruel and unusual punishment for some while some truly evil people are shown mercy that leaves them free to continue deadly rampages. How does “innocent until proven guilty” work when dealing with truly dangerous individuals? Sure, restitution is a good idea, but what does it really take to make a victim whole? In financial crimes, does it involve paying interest? What if the harm is so great that wholeness is impossible? What happens if the perp has no means? Does psychological harm to the victim count and if so, how do you measure it?

I look forward to an intriguing comments section.

45 Comments

  1. Val E. Forge
    Val E. Forge November 8, 2021 7:23 am

    On the “make whole” business when the perp has no means: I’ve been in the income property business for over 30 years. My life savings is tied up in my homes. I’ve been victim of vandalism by indigent perps. Ah, but they DO own their physical well being and (what they perceive as) their dignity. Some vigorous public flogging would draw heavily on those two quantities and possibly make the perps (and those observing the perps) develop a healthy respect for private property. If you can make it sting, you can make it stop. Think of it as “massage therapy”.

  2. Old-Trianer
    Old-Trianer November 8, 2021 7:33 am

    I am reminded of elements in “Restorative Justice” programs such as…
    https://mn.gov/doc/victims/restorative-justice/
    A national group…
    http://restorativejustice.org/

    Having actual experience with these efforts – I’ve personally found them flawed as they are often applied with the ‘regular’ criminal justice elements and tend to thus be deflected from actual restoration and become “political” very quickly.

    I think some part of restoration is necessary but the base principals under discussion need to be more refined before such an additional element as restoration can be added in.

  3. Comrade X
    Comrade X November 8, 2021 7:53 am

    Claire what you have outlined is a solid foundation.

    As you know I have this shoe fetish about one size does not fit all however to build anything you have to start with the foundation.

    IMHO this republic is on its last legs, also IMHO the original intent of small and very limited government is a good concept. One of our problems is how large everything has gotten since the founding.

    What seems to be happening every day now is a gradual decline and I believe that will continue. An overall peaceful decline? For now but both can change quickly. The key IMHO is to plan ahead and be prepare for what is coming as much as possible if a person wants to make it to the other side.

    In finding justice IMHO it needs to start with each of us, how can we find justice if we do not know and practice what is just and right ourselves. The next step is to find others who believe in what is right and just too.

    So what is right and just?

    Rightful liberty as TJ described for sure, however to have Rightful liberty IMHO you must start by protecting individuals’ natural rights (as John Locke outlined) of;

    life, liberty and property.

    How do you achieve that? There is a way you do not, to quote Ben Franklin from Poor Richard’s Almanack;

    “Pardoning the Bad, is injuring the Good.”

    To not injure the good you also need a “due process” that protects the good within any justice system one has. That principle of being innocent until proven guilty is IMHO a very sound concept and also is facing the accuser important. In a justice system where innocents has been falsely accused there should be harsh penalties for the accuser, to make a false indictment should be considered evil. Bad should not be pardoned and injuring the Good should have consequences. That’s where the saying that no one stands above the law plays large.

    One of our biggest failures today is how evil is allowed to harm good and walk away to do it’s evil over and over again. This done by both perps and LEO’s today.

  4. Val E. Forge
    Val E. Forge November 8, 2021 8:08 am

    Comrade X – Some good stuff. I was once falsely accused (though acquitted) and felt that since the “state” accused me (though found innocent), the state should have covered my legal fees. Of course they did not.

  5. larryarnold
    larryarnold November 8, 2021 10:03 am

    Wrote a story once where everyone had all the rights of a citizen, but they had to go through an education/vetting process to become a Registered Politician, eligible to run for elected office.

    When it comes to justice, I think of Sir Robert Peel’s nine principles of policing:
    https://lawenforcementactionpartnership.org/peel-policing-principles/
    Particularly the last one:
    To recognize always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

  6. kentmcmanigal
    kentmcmanigal November 9, 2021 8:28 am

    I’ve thought about this issue of justice a lot over the years, and especially after the death of my older daughter due to someone’s negligence (and the negligent person’s impairment which led to the accident).

    An accident can never be a crime. Even if it hurt me irreparably.
    Restitution (or a good faith attempt at restitution) can be owed because of negligence or an accident, though.
    Punishment is not justice, but the opposite.
    Prison doesn’t fix anything, but creates more victims (“tax” payers among them). It damages the inmates and the employees. It amounts to Criminal University, widening the social divide making the imprisoned feel they might as well victimize “society” more– using the skills they share with each other in prison– when they get out. It’s “Us vs. Them” after all.
    And the only ethical “capital punishment” is carried out at the scene of the attack by the intended victim or a bystander with the goal of stopping the attack in its tracks. Anything later is just revenge and isn’t justice..

  7. Tahn
    Tahn November 9, 2021 10:16 am

    This Is Great Claire! Your finished piece will be a great boon for any community or gathering wondering how to bring Justice and stability to their society, through voluntary effort.

    Concerning “mens rea”, I can see the usefulness in some areas but pitfalls in others. The act of “judging” someone’s mental capacity, IQ or foreknowledge of an event, borders on “mind reading” and psychic abilities, which is one reason to be judged strictly upon the actual trespass, not the “state of mind” of the trespasser, although it could certainly be considered as to whether something is criminal or civil and as to judgement.

    Another problem, what if a person of diminished capacity has harmed and, if released, will harm again? There is no capacity to tell wrong from right. Should his lack of capacity be used to increase a punishment (to keep him from further violations) or decrease his punishment (He knows not what he does)?

    Kent’s post brought up some good points and thoughts. He listed a “definition” of the words to use. This could be especially important in new communities.

    As an example is his definition of Justice-
    “Justice” is the attempt to take an individual who has been harmed and correct the damage; to return a victim to as close to the “pre-victimized condition” as is possible. Restitution can be part of this. Punishment– revenge– can’t be. Punishment– revenge– is anti-justice.”

    I would disagree. Justice is the attempt to take an individual who has been harmed and correct the damage; to return a victim to as close to the “pre-victimized condition” as is possible. BOTH Restitution AND Damages can be part of this.

    Private moral decisions of an individual, while admirable, cannot be forced upon a third party victim.

    I often find the word “revenge” used to describe “justice” obtained outside an “official” third party (Sheriff, Jury, etc.) . Actual “Justice” can be obtained thru both “official” and “unofficial” methods, although many profess to approve a more formal method. “Revenge” could be an entirely moral use of force, without the awareness nor approval of an “impartial” third party or an immoral use of force by organized group with the trappings of “legitimacy”.

    I believe that using force to make a victim whole is NOT a violation of the NAP but a continual reaction to the original violation. You can use force all the way through the process till you are truly made well. There is no time expiration on making things right.

    Good things to always spell these things out and the many choices the communities will have.

    I post my differences with Kent to show that different communities may have different definitions and understandings and therefore different solutions, although I sure agree with him about the evils of prison. Enslavement of the perp. by the victim would be preferable.

  8. John Wilder
    John Wilder November 9, 2021 8:49 pm

    Add in that you cannot testify against yourself. Plea bargains kill the justice system via encouraging draconian penalties and adding thousands of charges to make a complex case.

    Also: defendants are granted the same level of resources as the State uses to prosecute them.

  9. JohnnyC
    JohnnyC November 9, 2021 9:07 pm

    Looks like a solid foundation Claire. Of course nothing is perfect.
    Personally, I’ve always liked the Singapore option of punishment…. fines, beatings or meet your maker. For those who are guests in that country, you also have the option of being deported immediately, no chance to pack. Chains or prisons degrade human dignity everywhere and make an industry of it and do more harm than good. Their laws apply to everyone too, they executed a finance minister for accepting bribes while I was there a few years back. I especially like the no victim no crime, which tosses out most of the current US corruption code. Rehabilitation is a myth for most career criminals, better to cane them early and make them be a forced assistant to the hangman for a week to know whats coming without changes. Then if they are still a menace to society, they can be executed quickly without concern.

    Truly false accusations should face the same punishment as the accused, since things like rape should be punishable by death. Put election fraud down as a capital crime too.

    Also, dueling should be a mandatory option for arbitration of disputes. All politicians, judges and reporters should face a hanging by lottery every four years to reduce their numbers by 10%. Full background checks for all of them, prior to service with omissions being a capitol crime.

  10. ssemans
    ssemans November 10, 2021 7:57 am

    Kent is right that prison is cruel and counter-productive. Punishment is an unworthy goal of true justice, but may be useful toward other goals. I think prevention of future harms is a goal of justice, perhaps even ahead of restoration. Scared-straight measures will work on some, not many. Restriction of liberty short of full containment will suffice at times. Cost is a concern. Just as no adult has a right to live at the expense of another, no criminal should be contained at the expense of others. Charity could apply toward restitution, or containment.

    But in the transition from our current criminal society to a better one, it is unimaginable that the numbers of those unfit for full liberty could, though work or charity, be supervised, restricted, or contained to the degree necessary without additional input of funds to the system. Mass execution and harvesting of biologicals are pragmatic solutions, but!

    I see “original crime” as creating a criminal, and it is sans mens rea: having a child without the means, monetary and otherwise, to support and socialize her to a full respect for the rights of others. The perniciousness of government lies in encouraging such births, subsidizing and posing as substitute for those who rightly bear this responsibility, and thus helping to create those whose containment or elimination are its only proper reason for existence.

    My logic leads me where I do not wish to go: Mass executions, vivisection, forced sterilizations, abortions. Please show me the flaws in reasoning.

  11. anonymous
    anonymous November 10, 2021 9:52 am

    What about the cost of representation? Including Civil cases involving two private parties.

    Is there true Equality Before The Law ™ when one party can afford effectively unlimited legal council and the other party cannot afford any?

    Or would your system do away with lawyers altogether?

  12. Tahn
    Tahn November 10, 2021 11:20 am

    Personally, I like lawyers-arbitrators-contract defenders just fine (although I prefer accomplished trades people, who have an excellent understanding of the law and a reputation for honesty, for Judges).

    Having a “right” to something doesn’t demand equality of outcome. You may have to be your own attorney sometimes if you can’t afford or find a competent one..

    As for “Equality Before The Law”, again I would say it’s about equal methods, rules and opportunities for both sides,. I’m not sure an exact method of “equality” would be possible or desirable.

  13. pyrrhus
    pyrrhus November 10, 2021 12:49 pm

    Claire, speaking as a career business and Constitutional lawyer, your list embodies all the best principles of the English Common Law…But (1) the law is always political..(2)-who is going to enforce these principles? For example, If a Judge is corrupt or doesn’t follow the law, how will he be removed? How will Judges be selected in the first place? Platonic Guardians are not available….
    In my experience, arbitration is the best way of resolving disputes, and gives the little guy a voice that he does not have in a normal court..As an arbitrator, and pretty much all arbitrators in my experience, I always let the parties make their arguments without concern about the niceties..We always wanted to be fair, but follow the law as much as possible…A qualified jury could do much the same…

  14. pyrrhus
    pyrrhus November 10, 2021 1:26 pm

    In the 19th century, there were only 9 Federal crimes, and they were all pretty obviously bad things..Now we have millions, mostly created by obscure agencies, and no one knows what they are…We need to return to the 19th century if we are to have a reasonably fair system…New criminal laws should be treated like Constitutional Amendments, and be ratified by the States….But in general, all criminal law should be local, and plain enough to be known to most citizens…This was largely the case during the Middle Ages…It might be right to create a court exclusively for major disputes involving the high and mighty, whose jurisdiction would not extend to the rest of us…

  15. Noah Body
    Noah Body November 10, 2021 2:11 pm

    One thing a law enforcement/criminal justice system should not be is a revenue source for government. The speed trap is a classic example of this.

    Mayor’s courts are another example. Only two states, Louisiana and Ohio (my state) still have them. Even though the former Chief Justice of the Ohio Supreme Court was adamantly against them, some communities here still want to start them. One local community, which has two interstates running through it, makes $80K per month off its mayor’s court.

  16. Noah Body
    Noah Body November 10, 2021 2:25 pm

    ssemans,

    Where you are going wrong is you are trying to play God, thinking you can decide who is worthy to live and reproduce and who isn’t. Just because someone is born into poverty doesn’t mean they will become a criminal.

  17. anonymous
    anonymous November 10, 2021 2:31 pm

    > arbitration is the best way of resolving disputes, and gives the little guy a voice that he does not have in a normal court. As an arbitrator

    As somebody who has had the same dispute heard in both court and arbitration, I am calling bull s*** on this claim.

    The economic self-interests of arbitrators means that they are going to favor repeat “customers” over one-time participants.

    There is no reason to believe that you lot are any less self-serving than any politician or judge.

  18. anonymous
    anonymous November 10, 2021 2:52 pm

    > Having a “right” to something doesn’t demand equality of outcome.

    Who said anything about “equality of outcome”?

    > You may have to be your own attorney sometimes if you can’t afford or find a competent one.

    Been there, done that. More times than I have ever cared to.

    > As for “Equality Before The Law”, again I would say it’s about equal methods, rules and opportunities for both sides

    Except that when one side has effectively unlimited representation, and the other side has none, the methods and opportunities in the legal system are not the same for both sides – even if the rules are.

    > I’m not sure an exact method of “equality” would be possible or desirable.

    Then what is the legal system that you would find desirable? One where the rich and powerful are allowed to run roughshod over the poor and powerless in Courts Of Law?

    It’s been nearly 40 years since I read Milton Friedman’s “Free to Choose” (1980). If I recall correctly, one of Friedman’s justifications for most forms of inequality was Equality Before The Law. But I guess even that veneer has been dropped by now because certain factions of the Ruling Elite find it inconvenient.

  19. Tahn
    Tahn November 10, 2021 5:23 pm

    Anonymous,

    You are correct that there are indeed disparities in all :Legal Systems”, just as there are in most all aspects of our lives here. We are human and while we can attempt to minimize differences and effectively neutralize prejudices, seeking perfection in the “Justice” system is like attempting to build Eutopia. Ain’t gonna happen. What we can do is look at the current mess and try to build a new system, based on libertarian principles of ethics and fairness.

    I want a legal system that is reasonable, fair, honest and empathetic, while always searching for the truth and has no “mala prohibita” rules at all.

  20. JohnnyC
    JohnnyC November 10, 2021 9:06 pm

    ssemans,

    I’m in favor of sterilization (temporarily) if you are on any type of dole. if you can’t or won’t take care of yourself, don’t expect others to take care of you and yours. This would eliminate a lot of the permanent criminal class. Too many welfare kids.

  21. larryarnold
    larryarnold November 10, 2021 11:35 pm

    rape should be punishable by death

    The argument against that is the rapist may as well murder the victim, if only to eliminate a witness, since the punishment is the same.
    I’d also limit it to forcible rape. Otherwise, a lot of high school kids would be executed if caught with their girlfriend/boyfriend.

  22. James
    James November 11, 2021 5:50 am

    The idea of punishment seems unpopular among the commentariat here. Let me offer something by one of my heroes, C.S. Lewis, which is too long to copy ‘n’ paste in this comment, but is worth, I think, a look. My TL;DR summary is: punishing crime is actually a protection to the criminal, simply because the penalty imposed is, presumably, tied to a judgement of what the offense deserves, and once it’s over, it’s over. “Rehabilitation,” on the contrary, only ends when the offender is rehabilitated, and only the Rehabilitators are allowed to say when that is — if ever.

    Otherwise, there’s much here that I agree with. I think we need to bear in mind, though, that whatever “justice system” implemented by freedomistas on that glorious morning when our oppressors have been put out of business — one way or another! — will inevitably devolve into a new tyranny, fallible humans being what they (we) are. That doesn’t mean it isn’t our job to consider, and, dare I say, plan. It is simply to recognize that no solution is permanent, in this fallen world. And that’s okay. I think our real duty is to put something in place that will be tolerable as long as possible. The version of the USA in which I grew up was reasonably tolerable. And when it “runs down” into a new system of oppression and injustice? Then it’s time to nourish the Tree of Liberty in the only way it can be done.

  23. Gimpy
    Gimpy November 11, 2021 6:37 am

    Long time reader, first time commenting. Thanks as always, Claire, for your clear insight.

    This topic is of keen interest to me because I’ve been trying for years to imagine what the world, or at least my little corner of it, would be like if we had a free market in government. There’s a small element of this in the design of our Republic; states as the “laboratories of innovation” competing against each other to attract the most citizens. However, this still rests on the social contract that I, like Lysander Spooner, never signed.

    Recently, though, I watched a BPS video “Caravan of Saints” (no link, can be found on Rumble) which mentioned a study that suggested that popular government is impossible if the population’s average IQ is below 95 or so. (Maybe importing millions from low-IQ regions isn’t a good idea, unless you’re trying to collapse representative government. Though, to be fair, Hanlon’s Razor applies here.) If that’s true, then perhaps it’s also true that there’s an average IQ for a population above which no government is necessary. But given our Idiocracy trajectory, if those statements are true, then were doomed.

    Heinlein’s distinction between Citizens and Civilians in Starship Troopers is potentially a good model. I have some ideas about what should qualify one for full Citizenship, which confers the ability to participate in government, but the list is by no means complete or correct.

    Another concept I’ve been trying to interweave into all of this Dunbar’s Number and how that hard-wired limitation in our brains plays out in the political landscape. One hypothesis I’ve formed regarding this is that pure socialism could work in a group of 150 or so, where social pressures (e.g. shaming) could work to enforce group norms. I do believe that membership in that collective should be voluntary, because compelled socialism is what we’re fighting against.

  24. Gimpy
    Gimpy November 11, 2021 6:50 am

    @JohnnyC, re: your sterilization comment.

    here’s a thought experiment. Replace all government welfare/transfer payments with a generous UBI, not means tested, for all sterile citizens or disabled veterans. Feel free to include the prohibition against voting for anyone (except the disabled vets) receiving the UBI. (One could get sterilized and then not take the UBI if he so chose. One could also turn it on and off as needed.)

    By reversing the financial incentives, I think we could see intergenerational poverty disappear within 3 generations.

  25. Val E. Forge
    Val E. Forge November 11, 2021 12:21 pm

    JohnnyC – I like your style!

  26. larryarnold
    larryarnold November 12, 2021 8:14 am

    The idea of punishment seems unpopular among the commentariat here.

    There’s a Prager U video, “An eye for an eye,” that I don’t completely agree with. However, it makes the point that if institutionalized government punishment replaces private family vendetta, it’s a civilizing step forward.
    https://www.youtube.com/watch?v=UrakW1DjApo

    Maybe importing millions from low-IQ regions isn’t a good idea, unless you’re trying to collapse representative government.

    There’s a difference between “importing” and “accepting refugees from,” though. Australia and other countries “imported” prisoners from England when transporting was a punishment, and of course the U.S. imported slaves.
    That’s different from those coming across the U.S. southern border today. I’m not sure I believe in “low IQ regions” other than those where malnutrition plays a part. Regardless, people who leave everything behind to risk a journey to a “land of opportunity” tend to be smarter and more industrious than the average population they leave behind.

    We saw that in the late 19th Century in the immigrants fleeing the Irish potato famine, and we see it today in Blacks immigrating from Nigeria, one of whom just got elected Lt. Gov. of Virginia.

    That’s not a hard rule, though, given those fleeing the Golden State who want to Californicate their new homes. (sigh)

    Like Tevya, I’m running out of “on the other hands.”

  27. Tahn
    Tahn November 12, 2021 8:47 am

    James, Thank you for your link to C.S.Lewis. What a great and thought provoking article and well worth reading and studying.

    This could give impetus to my “belief” that only the victim has the moral right to determine the punishment for a crime. This would also, according to my interpretation of Lewis, eliminate the State or “society” from “officially” choosing one path or another. An occasional error of “proportional penalties”, compared to a state/communities consistent error in any one direction.

    It also, “spreads the guilt” from an entire community being guilty of an error of over/under judgement penalty, to only the victim being guilty in this one incident.

  28. Tahn
    Tahn November 12, 2021 9:21 am

    Larry, Thanks for that link to Prager U. More viable stuff to think about.

    You made a statement that, since I became a libertarian, I’m no longer sure I can agree with.
    You said ” However, it makes the point that if institutionalized government punishment replaces private family vendetta, it’s a civilizing step forward.”

    Transferring one’s rights/powers/responsibilities to a supposedly neutral govern-ment, has not shown (in my opinion) throughout history to have increased the “Rightful Liberty” of individuals.

    Except for brief moments when govern-ment was small, I would posit the opposite has happened. As more and more rights are transferred to a state, the individual rights of mankind has diminished.

    So I’m doubting whether govern-ment punishment is a “civilizing step forward.”

  29. Noah Body
    Noah Body November 12, 2021 12:20 pm

    Re: sterilization of people on the dole

    I would include in the definition of people on the dole those who send their kids to government schools, the oldest and largest welfare program of all. A program that has no means testing, and is mainly funded by real estate taxes, which are the most regressive taxes of all.

    I am less bothered by truly needy people on welfare and food stamps than by non-needy parents who want the best education possible for their offspring, as long as they can force their neighbors to pay for it.

  30. larryarnold
    larryarnold November 12, 2021 5:02 pm

    And now there are those who advocate free college.

    I graduated from “free” high school in 1965, 56 years ago. Every January I go to the school tax office and cough up four figures out of my income to pay for that “free” education. I will do so until I die, then the school district will probably tax my gravesite.
    Free college may double or triple that.
    However large your college loan is, you have some hope of paying it off. You will never, ever, for eternity, pay off “free” high school. Whether you actually went to public schools or not.

  31. Toirdhealbheach Beucail
    Toirdhealbheach Beucail November 13, 2021 6:40 am

    Claire – The discussion was correct to pivot to principles (form following function yet again). That said, the function of how it is administered matters as well (and has been discussed here as it should be as well). Ultimately the administration of justice relies on a system to ensure that the principles of justice are applied correctly (and justly, as it were). Whether by authoritarian figure (king, tribal chieftain, lawspeaker) or the community via agreed upon norms (the payment of weregild, for example, or the enforcement of the law by individuals empowered to do such), there must be a mechanism which people believe enforce the judgement and principles – else we are pushed back into something similar that we have today, theoretically lofty goals for which will never be executed upon.

  32. Tahn
    Tahn November 13, 2021 8:38 am

    Toirdhealbheach Beucail,

    I believe you are correct in stating how important the principles of correct application are in establishing a “Justice System”. The problem (to me) is how to administer such justice without any “authoritarian” figures or individuals “empowered” to administer such justice or even arrest or try someone, as theoretically, in a ‘libertarian’ community, no one has more power or authority than anyone else and no one has the right to initiate force against another person or their property.

    That leaves the victim (with their right to resist force) and the property owners, (with their right to control all aspects within their borders), as the only two who have a “right” to participate, (absent 3rd party assigns who are still participating as a representative of the victim or owner).

    Now everybody has the right of arrest, if they actually witness a violation of the NAP and I suppose that a third group (judge and jury) might have some public “color of title” to represent a community but technically (to me) only the victim and property owner have any actual “rights” to punish.

    If the violation takes place on community property, the community would certainly (along with the victim) have a “right” to handle it however they desire, either by trial, arbitration, etc..

    If the violation takes place on the victims private property AND the perp. is caught by the victim, I can see no reason why the victim alone has the right to decide guilt and punishment, just as a King of old had the absolute right of control in his Kingdom.

    It’s going to take a whole new way of thinking about crime and justice, absent a state or powerful authority to rely upon.

  33. Tahn
    Tahn November 13, 2021 8:51 am

    Language is tricky. A key sentence above in the next to last paragraph, should read “I can see no reason why the victim alone, shouldn’t have the right to decide guilt and punishment, just as a King of old had the absolute right of control in his Kingdom.”

    I would add that personal responsibility is a key factor in all aspects of libertarian life, especially in a situation such as this and people will have to live with the consequences of their decisions.

    While there may be an occasional error or abuse of such a remedy, it will be sporadic and not the institutionalized evil that often happens today.

  34. free.and.true
    free.and.true November 13, 2021 10:20 am

    Late to the party here, but… kudos are due… excellent foundation and thought-provoking read, Claire.

    Tahn, if I’m reading your latest comment correctly, you can see no reason why the victim shouldn’t decide guilt and punishment, like a king of old? Well, I sure can — because kings of old were so prone to being or becoming tyrants, forcing others to do their bidding at whim. That’s a major thing we were trying to leave behind in the creation of this country. To follow such a path would be to create from the ground up a nation of men, not of laws. Talk about unjust, and unstable!

    Then, too, a just system must eliminate any structure, entity, etc. which would serve to shelter individuals from accountability for, and consequences of, their actions. So — no “I was just doing my job” — no corporate protections, no LLCs, no sovereign or diplomatic immunity, no hiding behind a badge or shield or blue wall or any of that crap we so often observe in play in the current “just us” system.

    Oh well… just my $0.02. ;~)

  35. Tahn
    Tahn November 13, 2021 10:40 am

    free.and.true,

    I appreciate your $0.02

    Yes, IF a perp. is caught on a victims property, under libertarian precepts, I can see no one else to legitimately use force against an invasion of force (and enforcement of penalties). If it happens on another’s property (Private or Community), then they would also have a right to participate and use force. Who else has a right to use force to “make things right”?

    Yes, there can and will be aberrations in what “the public” judges to be appropriate but they will be isolated and not a systemic evil controlling others.

    No controlling entity or power structure. Property Rights are paramount and NO ONE has the right to initiate force against another person or their property.

    How else to administer “Justice” without violating these critical premises?

  36. Simon Templar
    Simon Templar November 13, 2021 10:49 am

    Here’s my main quibble: “If there is no victim, there is no crime.”

    I’m channeling the Lorax, here. I think that damage to the environment could, and should, be classified as a crime, depending on the circumstances. Excessive or unnecessary destruction of flora or fauna, by whatever means, has no clearly identifiable victim, other than society / humanity as a whole, or Mother Earth, or Gaia, or all life forms, or whatever. The trees and the birds and the beasts and the fishes, et al, have no one to speak for them, except us. Most of them cannot fight back effectively, and even then, they generally lose, if not immediately, then eventually.

    If no one ever stood up for the flora and the fauna, there would be little, if any, of it left by now, and there would quite possibly be none of us left to be having this discussion, either.

  37. Tahn
    Tahn November 13, 2021 11:28 am

    Simon Templar,

    I agree that it is important to protect Mother Earth. The libertarian way I believe, is to buy land and protect it or attach protective conditions to it before reselling or supporting those who are buying protective environmental covenants on land..

    Giving “rights” to items of ownership is a delicate matter and perhaps some communities may attempt it but it IS a diminution of property rights, which in my opinion, are the basic building blocks of libertarian thought. .

    You have an absolute right to protect yourself or your property from harm. If your property is being bombarded by sewage or toxic chemicals, you have an absolute right to self defense and stopping it. Your property, your rights! Again, dealing with damages is tricky but hopefully, arbitration can help.

    Showing harm from some ecological nightmare a great distance away may be difficult to prove Prove to whom? How to enforce contracts or violations of property rights in a libertarian community is something I am looking forward to learning.

    “Self responsibility is the key to Freedom.” MamaLiberty

  38. Noah Body
    Noah Body November 13, 2021 12:14 pm

    “I can see no reason why the victim alone, shouldn’t have the right to decide guilt and punishment,”

    To play the devil’s advocate here, is it appropriate for a property owner to decree the death penalty for a child who takes an apple from a tree on the owner’s property?

    I saw this example on Lew Rockwell some time back, and the commenter said that if that were the case, pretty soon there would be no property rights.

    The system we have now is certainly flawed. Without question, some things must be changed. But it’s easy to criticize and tear down. It’s not so easy to create something better. And some of the comments here cause me to cringe in fear of what some of you would create.

  39. Tahn
    Tahn November 13, 2021 12:34 pm

    Is it appropriate? Of course not! Would someone do it? Probably not. It must be remembered that with Freedom comes responsibility and one has to live with the consequences of one’s actions., both the thief and the apple tree owner.

    It is very difficult to attempt to create something better, especially staying within the frame work of libertarian philosophy and I totally support Claire and her efforts!

  40. The Freeholder
    The Freeholder November 13, 2021 12:46 pm

    There’s a lot of things I could comment on, but I’m going to limit myself.

    “Sterilization while on the dole” My solution? No dole. Any charity is done by private individuals or institutions. The government gets out of the business entirely. Yes, there will likely be some who are so, let’s say unworthy of assistance” that they will live in Dickensian squalor or even die. Ugly. I wouldn’t want to look at it. But I think it’s a necessary thing.

    “Victims determining the punishment” Sounds like the whole Steve Martin “death penalty for parking violations” thing. Some sort of limitation would have to be thought out. The overreaction of someone who is wronged and who insists that someone must die for, a “minor” property crime for example, could lead to something out of my family history you may have heard of-the Hatfield-McCoy feud. We don’t need to encourage such things.

    I have always though Heinlein’s Starship Troopers model was a very good idea, perhaps with some tweaks. I think that for a Citizen to rise to any sort of “public office” even higher qualification would be required. Michael Z. Williamson does such in his Freehold series-they have to achieve a certain amount of wealth, and they must give it all up to the government in order to achieve office. Maybe not perfect, but an idea.

    Claire, this was another excellent post.

  41. Simon Templar
    Simon Templar November 13, 2021 1:00 pm

    Tahn,

    That is the one big problem I have with mainstream libertarian thought: the “buy land and protect it” idea only works on a minute scale.

    How would I buy the oceans of the world? And who would be selling them? How would I fence them in? Where would I put the “No Trespassing” signs? How would I patrol their borders for trespassers? Ditto for the forests, plains, tundras, glaciers, deserts, atmosphere, etc.

    When you take a “whole forest” view instead of a “one speck of bark on one tree” view, the “buy land and protect it” thing starts to look pretty absurd.

    There is also the problem that ecosystems only really work as a whole, not as a sum of parts. So even everyone buying their bit and trying to protect it would not only be impossibly insufficient, but wouldn’t really work even if it were sufficient.

    BTW, when people ask, I tell them I am generally a “green” libertarian, in an effort to distance myself from that particular aspect of conventional libertarianism.

  42. anonymous
    anonymous November 13, 2021 1:35 pm

    > try to build a new system, based on libertarian principles of ethics and fairness.

    libertarian principles ≠ ethics and fairness

  43. Tahn
    Tahn November 13, 2021 3:55 pm

    Simon Templar

    I agree it is small but growing. I’m turning 10 acres into a private “Wildlife Refuge and Simple Living Project.”

    But I don’t have a libertarian solution either except in numbers or groups perhaps. I don’t see an international control group or court as the solution..

    I concur about it being one ecosystem. What is the best protection against international polluters? I don’t know. Maybe Claire will cover this in “Community Justice Against Outside bad guys ? ? ?

  44. Kevin
    Kevin November 14, 2021 7:12 am

    My first thought is we need to go back to the idea of a peace officer instead of law involvement. A peace officer will have as their main goal to keep things peaceful.

    Law Enforcement is and has become a “got you” form of legal system. This I believe is one of the issues with keeping and maintaining the respect of the public. As the police are perceived as or are actually there to set you up and catch you to create fines and punishment. Justifying their position and manning levels.

    Every lawyer and some police will advise you to never talk to the police as nothing good can come off it. That with the above establishes the them and us issue that permeates the current status.

    The Supreme Court has through a number of cases in all intent and propose certified all local, county, state and federal police as professional liars. The trust of the police at every level is non-existent.

    I agree with item #9 of the 9 Policing Principles “To recognize always that the test of police efficiency is the absence of crime and disorder,” the advancement of peace officers should be based on the actual level of peace not the presents of crime.

    All forms of immunity for government employees and officials needs to be ended. I understand the issue of members of Congress being immune from arrest during open sessions to keep political arrests out of the equation.

    Over the years the police have been asked to do more and more questionable things and at first have for the most part refused or suffered many irrational law suits. The unions have resolved this with immunity and the governing body’s protection of their bonds to keep legal issues from keeping them from maintaining their work status. This has to stop. The purpose of the bond is to keep bad officers from moving to new locations and keep their record from following. If they can’t get bonded they can’t work that is the point.

    Officers are currently evaluated by having the highest number of arrests, tickets etc. that is a formula for us-v-them.

    At some point in the past the job of the Judge was to administer justice not be the referee between two lawyers. This is where the I got the best lawyer so I win has come from. Currently a Judge will let an obvious miss representation of the law or Constitution go if the opposing lawyer does not call it out. The Judge should not be the referee but instead an administrator of justice and protect both sides of the issue and the participants legal and constitutional rights. They should be held accountable for errors and miscarriages of justice.

    I have read of cases where the crime the accused was tried and found guilty of did not even exist. The Judge and prosecutor should be held to account for that. I have had attorneys tell me the Judge has no fiduciary responsibility to validate the existence of the laws being applied that is the opposing attorneys job.

    A little known fact is in most if not all States if you sue a lawyer the case is a looser pays action. This would be a good solution for all civil suits. Works for me but not for thee is the current status.

    There are individuals that just can’t be left to their own device in the general population for the good of all. This is a hard issue to keep from getting corrupted but there must be a place to keep them if the issue cannot be resolved with capital punishment.

    I have no issue with the death penalty in theory I just have no trust in our current system to administer the process.

    There is the fact that the general citizen in theory has the same powers and authorities with out some of the limits a peace officer has it is just not their carrier if this is so then during the commission of the crime much of this may be resolved. If the 2nd Amendment is cleared of all State and Federal intrusions.

    The Federal Government has no authority for most of the criminal statutes they have written or have un-constitutional departments performing the job. I have read the Constitution and I see nowhere that it gives the Congress authority to assign their duties to others. The president does not have that authority ether.

    The original constitution with a few changes like eliminating the 3/5 stuff will work just fine if we eliminate the 1900+ revisions. I would not mind a serious criminal punishment for not following the constitution be added. If there is no consequences to offending the constitution the practice will return in time.

    Well that all I will chew on at this point prove me wrong please.

  45. JohnnyC
    JohnnyC November 17, 2021 7:13 pm

    @Gimpy,

    Sorry for the late reply. The impending national bankruptcy or hyperinflation means there will be zero funding for UBI or any other type of government handouts. Why wait 3 generations when it will end in the next 2 years when everyone has to get a job or be supported by family?

    Government handouts will be going the way of the passenger pigeon. Once the dollars crash, everyone is going to be poor, like it or not.

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