Stefan
Blankertz
Courts,
Judges, And The Law In The Free City
Introduction
It's written in the Holy
Scripture "Thou shalt not make an
effigy." That is to say "no image of God". Saint Thomas Aquinas
explains the meaning of this phrase: You should only feel sure that God is, but
you can't have but the slightest knowledge of how He is. When I was asked to
speak about the system of courts and justice in a free city, I first hesitated.
What in hell do I know of the way free people organize their courts? Where can
I take from what free people think of as justice? If I paint a detailed
scenario of the future free city, it raises the danger of restraining the
creativity of the spontaneous order - that very spontaneous order we expect to
take care of every problem in human society.
On the other hand, I understand
that nothing is as convincing as a precisely worked out utopia. Christian
artists of course often made paintings of God but kept in mind that this was
not God as He really is but only a putting in place of the unknown.
In this way, I decided to tell
you some stories of how I imagine justice could work in my free city. But
please bear in mind that I am no judge and that we do not live in my free city.
What I am going to speak about is neither reality nor a rule. It's just playing
with some possibilities. To illustrate how difficult it is to describe the free
city, I give you but just one simple example:
In the first story I tell you
about a stolen car. But will there be cars in a free city? Or would there
evolve other, more efficient means of mass transportation? I don't know. But I
want to stress that by speaking of a stolen car I do not intend to say that in
the free city there will be cars.
Crime In Our Free City
In my free city there is much less
crime than we know of in our statist societies. These low crime rates have
three major reasons:
1. In the first place, crime rates are
low because there are no crimes like tax evasion, drug using and drug selling,
sexual intercourse between consenting people, illegal immigration and so on.
Consequently, organized crime also is weakened.
2. The second reason for low crime
rates in our free city is that there is actually no poverty. No state meddles
with the free market and therefore most people are able to make at least a
decent living. The others are taken care of by good-hearted people, not cold
bureaurocrats.
3. The third reason why in our free
city you don't find much crime is that there is considerably less frustration
than today. The individual person has an over-all control of his life.
Institutions only have an impact on your life when you asked for it. This
provides a psychologically healthy environment.
But of course I am not an
utopist. Here and there we will still find crime in my free city. I'm telling
you four stories about instances of such crimes many people are afraid of
nowadays.
First Story: Theft
You get up early in the morning
and want to go to work. Then, shock: your car is stolen. You call Crissy of VM
Instant Safety Incorporated, the security agency you subscribe to. First,
Crissy, as a service, brings you a substitute car. Then VM Instant Safety tries
to locate your car. Crissy gets hold of the car and returns it to you, luckily
undamaged. And she even finds the thief. Although your property is not damaged,
the whole procedure costs some money, and you want the thief to pay for it. You
think it's fair that he takes over this year's bill of VM Instant Safety. But
he won't.
You turn to Rose Wilder, a judge
with a good reputation. Rose Wilder asks you both to come to see her. The
thief, let's call him Karl, shows up to defend himself. Karl, the thief, says
that he had the right to steal the car because he is too poor to buy one but
needed a car at that moment to visit his ill mother. Therefore Karl is not
willing to pay for the search for the car he took. Rose Wilder, the judge,
answers:
"You
have my compassion regarding your mother, I hope she's better now. I see your
plight. Let's try to find a solution which is good for all of you. But first
let me point out that you didn't have the right to steal the car. If there were
the universal rule that everybody who has no car can take another person's car
without permission, the consequence would be that somebody having no car might
have stopped you five meters after you have started the stolen car and turn you
out to use it himself, because then you somehow 'owned' a car. In this case,
you would not have had the chance to get to your mother anyway. You see, you
relied on the safety of property as a universal rule but you think you have the
right to represent an exception. Or, look at it from another point of view: If
the universal rule is that everybody is allowed to take what he thinks is
appropriate, the gentleman whose car you stole legally has the right to take
from you every amount of money he wants.
I
actually do not believe that anyone has the right to take from another man what
he thinks is appropriate. Therefore I think that demanding from the thief to
pay the yearly insurance premium of the security agency is an arbitrary action.
I asked VM Instant Safety Inc to tell me what their actual costs had been. I
want you, Karl, to pay the actual costs only, plus my fee. As we know that you
don't have much money, we came to terms that you will have to pay a suitable
monthly rate only.
And I
want you, my dear gentleman, to stop looking for revenge. Be content with my
ruling and we will live in peace hereafter. Thank you both for co-operation.
God be with you."
In the majority of cases, this
would be the end of the story, I think. But of course, Karl can be stubborn and
unwilling to pay even this small amount to compensate the damage he caused.
Rose Wilder, the judge, then gives permission to VM Instant Safety to exercise
coercion to get the money.
This story differs in three ways
from what has been our experience with statist monopoly police and courts:
1.
First difference: The monopolist
police do not suppose to have to act as a service company. They will not take
action immediately, if at all. They definitely will not bring you a substitute
car.
2.
Second difference: The
monopolist police is not interested in getting back your property, but in
getting hold of the thief. If they get hold of your property, they often keep
it back as piece of evidence. If they really get hold of the thief, they put
him into prison.
3.
Third difference: The statist
judge's ambition is not to create peace with his rulings in the first place.
According to his decision the thief either will have to pay a fine to the state
(but not to the damaged) or he will be kept in prison. The consequence of
imprisonment is that the person in question will not be able to pay
restitution.
This is only a rough sketch of
my ideas of how theft is handled in my free city. In the following I'm trying
to anticipate some questions that might arise.
1.
First question: What if the
thief, Karl, is too poor to pay even the small amount fixed by the judge Rose
Wilder?
Answer:
Karl, then, can be forced to pay by labour. This is not the same thing as imprisonment
in the sense used in statist societies. In my free city, prisons will be
efficient production units with the aim that the "imprisoned" persons
as quick as possible will be able to pay for their restitution.
2.
Second question: Why do you turn
to a judge at all? You could instantly send your security agency to collect the
money. Of course you can. Nobody in the free city demands from you to turn to a
judge. But then Karl would have a good case against you. He will turn to Rose
Wilder, the judge. She will rule that you demanded too much and sentence you to
pay back the surplus together with the costs of the trial. In turning to a
judge, you signal that you wish to have the case settled peacefully. And you
will turn to that judge which has the best reputation in being able to
re-install peace, not to someone prejudiced in favour of his clients.
3.
Third question: What follows
when VM Instant Safety bullies Karl in order to collect the money from him?
Again, Karl then has a good case against VM Instant Safety. He can demand
restitution from them. They in turn will lose their reputation of being able to
settle things efficiently. Their costs will go up as well as rates. They will
loose you as a customer, I guess.
Second Story: Murder
Some weeks after the car theft,
you get a horrible phone call: Your beloved aunt has been murdered. You
immediately suspect your hated uncle to be the murderer. You send VM Instant
Safety to get him and bring him to court. The judge of your choice again is
Rose Wilder. The evidence VM Instant Safety presents to her seems valid enough
and she sentences your uncle to death. But your uncle calls himself innocent
and demands a new trial with another judge. Being not totally sure herself,
Rose Wilder allows the appeal. Your uncle proposes Miss Goldman as judge, an
old lady well-known for her wisdom.
Reconsidering the evidence, Miss
Goldman comes to the conclusion that your uncle indeed is innocent. Moreover,
she says:
"Rose
Wilder, you disappointed me. You have a good reputation to settle civil
disputes, but have no experience whatsoever in criminal cases. You should have
seen that the charge against this innocent man was motivated by hate only. The
evidence is as poor as it can be.
But
even if you strongly believed that this man is the murderer, it is
irresponsible to sentence someone to death anyway. You know that you are guilty
of murder if someone you sentenced to death later turns out to be innocent. By
the way, I give you this piece of advice free-of-charge: Avoid death penalty by
any means. Most cases can be settled if you press the convicted murderer to pay
as much as to reduce his standard of living to a minimum afterwards.
Back
to our case. I think that the evidence is so poor that even policewoman Crissy
of VM Instant Safety should not have used force to bring the defendant before
court. Crissy, you can call yourself lucky that nothing more serious happend.
I
sentence both of you, Rose Wilder and Crissy, to pay the accused for the
psychological harm you have done to him."
Then Miss Goldman, the old
judge, sighs and turns to you. She raises her brow and looks very austere:
"You
followed hate, not reason. This is not a crime. You yourself have not committed
any crime. But you induced the crimes of Rose Wilder and your faithful guard
Crissy. I think it would be fair that you take my bill. I cannot force you, but
I beg you to spare those you led astray these extra costs."
In this case, we notice two new
fundamental differences between the statist procedure we are familiar with and
the justice found in my free city.
1.
First. If you have a charge
against someone, you immediately can take action. You do not have to wait for
others like prosecutors.
2.
Second. If someone is accused
wrongly or even sentenced by false accusation those who caused the injustice
are personally responsible. And the victim has a chance to get compensation.
But again, there are still some
more questions left of whether or not the outcome of my story is plausible.
1.
First question. What if Rose
Wilder doesn't wait for the appeal but immediately has the execution carried out? The answer gave
Miss Goldman, the judge, already: Then Rose Wilder is guilty of murder.
2.
Second question. Even provided
that, would it not result in an endless feud if your uncle is murdered that way
and Rose Wilder is executed herself? This is a hard question indeed. But I
think the answer is: No. Feuds are based on an old-fashioned notion of honour,
not on reason and justice. If a judge is sentenced to death because he induced
the execution of a death penalty in an uncertain case, this will have the
effect on other judges, I guess, that they will be more prudent in future.
3.
Third question. Why is Rose
Wilder willing to allow the appeal? The answer is to be found in the principle
of responsibility: Rose Wilder knows that she will be held responsible if her
judgement turns out to be wrong. Therefore she seeks reassuring.
4.
Fourth question. But what can be
done in case she does not allow the appeal anyway? The answer is that in this
instance your uncle would go on finding a new judge anyhow. If you, your judge
and your security agency are not willing to co-operate, the new judge will
exercise compulsion against you if he thinks that the charge is plausible.
5.
Fifth (last) question (to this
case). In the free city you have to pay for everything. Now suppose that your
uncle has no money and thus cannot afford a judge. Will it not be that the
consequence is unjustice? Answer: The assumption is wrong. Quite to the
contrary, everyone who as a good case will find a judge, because the convicted
has to pay.
Third Story: Gang Brutality
Nilly-willy you payed the bill
of this rigorous lady judge, Miss Goldman, because VM Instant Safety, your
security agency, threatened to revoce the contract with you if you don't agree
to Miss Goldman's ruling.
Some weeks afterwards you really
feel happy that you didn't have the contract revoked. A youth gang vandalizes
the house you live in. Your neighbour, Mr Smith, is being attacked. Although Mr
Smith does not subscribe to any security service, Crissy, the guard of VM
Instant Safety steps in to rescue poor Mr Smith.
Mr Smith, however, does not
learn the lesson. Asked by Crissy to join VM Instant Safety, he stubbornly
refuses to subscribe.
A few days later the gang returns.
Because Mr Smith still has no security service sticker on his door, they again
seize him and rob his place. But this time, Crissy maliciously turns her head
away. Mr Smith now understands that he, too, has to subscribe to a security
agency. He decides not to join VM Instant Safety but Fracture Power Inc,
instead.
The two agencies, your VM
Instant Safety and Mr Smith's Facture Power immediately start quarrelling about
their respective districts of influence. This quarrel disturbs you, Mr Smith
and the whole neighbourhood. Security rates go up. Safety goes down. After a
while Crissy decides to leave VM Instant Safety and set up her own security
agency. Everyone in the neighbourhood is happy to join her new company.
Here again we see what
difference it makes to live in our free city where you can take immediate
action if you are harassed. But moreover we see that you can change the
security agency if the service it offers deteriorates and the prices go up.
Fourth Story: Drugs
Of course, I believe that you as
a libertarian defy taking any actions against drug using or drug pushing. But
your neighbour, Mr Smith, is not quite a libertarian. When he discovers that
his son takes drugs, he presses charge against the dealer.
Will he find a judge at all?
Rose Wilder, to whom her last fiasco had been a lesson, rejects. But Mr Smith
finds a corrupt judge he knows via Fracture Power, his former security agency.
In absence of the defendant this
corrupt judge severely sentences him. When Fracture Power threatens to force
the dealer to pay, he turns to Miss Goldman whom we already know as a skilled
common sense judge. She says:
"Without
doubt, it is everybody's right of to sell anything he wants to consenting
buyers. Therefore pushing drugs is no crime. But I want to be precise here.
What we need is an expertise of what the drugs content. I want to know exactly
if they are pure or not. If not, the dealer would be a cheat and would be
sentenced as such. And I want to be sure that he does not mix soft drugs with
hard drugs to make the buyers addictive without their consent. In that case I
would consider it to be a bodily injury, a very severe crime.
Now a
word to you, Mr Smith. If you abhor drug taking, nobody forces you to let your
son stay with you any longer. But by no means you have the right to forbid him
to take drugs if he insists in doing so. And of course you cannot charge the
seller of drugs in place of your son."
Here we can ask the same
questions as we did before: What if the security agency executes the dealer
without waiting for the new trial? Or: What if the dealer has no money to pay
for his defence? I gave all the answers already.
Conclusions
Considering all the items I've
mentioned before, we see that in a free society the judges and their courts are
in contrast to what they are today:
o Judges are experts in making peace, in settling
disputes, in fixing restitution.
o Also in contrast to what they are today, judges are
responsible for the consequences of their decisions. No one has the right to harass
someone only because he calls himself a judge.
In such a situation law will
evolve naturally from reason and common sense as it had been before the state
occupied the field of law.
One of the greatest teachers of
law, the medieval philosopher Saint Thomas Aquinas, says that the only binding
kind of law is the rational law of nature. Written law, as it was called,
cannot surpass natural law. If the written law ever contradicts natural law,
the written law does not reflect justice but destroys justice. Written law,
according to Thomas Aquinas, has only one proper function, namely to interpret
natural law. Murray Rothbard, the libertarian Thomist, pointed out the fact
that what we call "civil law" today, is in many respects the product
of the free market courts operating in the middle ages and the early modern
times. The state did not invent the law, as it hasn't invented anything, but
only took it to pervert it for its own purposes.
It's time to take law into our
own hands again and built a free city without those monopoly courts but with
judges who know what the term "justice" means. The result will not be
the perfect society but a viable society, as Paul Goodman said, the other
founder of modern libertarian Thomism. This is all we can hope for.