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.
“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.
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.