Sunday, November 26, 2006

Libertarian Justice

Our New Law and Order Government proposes to have police appoint judges, calls for mandatory sentencing, three strike laws, and the whole raft of authoritarian solutions to 'crime' . What they have missed doing is to actually reform the real failure in our so called 'justice' system. That failure is the lack of a genuine jury system.

Like most judicial systems Canada's has little to do with real justice because it is all about state sanctioned law. It lacks the very basis of libertarian justice; the jury system.

Rarely are court cases in Canada heard by a jury. The prosecution can opt for a Judge in many cases of minor to serious crimes. And even in cases of very serious crimes, assualt, murder, etc. a jury is optional. It is NOT a given. It is an option. And thus it's power and relevance remains diminished in Canada, even more so than in the United States.

Yet for real justice to be done, the jury system is key to a libertarian approach to law. Ironic that those who laughingly call themselves libertarians like the Harpocrites quickly abandon any such pretext once they achieve state power. Then like Tories of old England they return to their reactionary artistocratic roots; law and order, God, Queen and Country.

They of course are really speaking of liberaltarianism, that species of false or vulgar libertarianism that is commonly called fiscal conservativism, neo-conservativism or neo-liberalism. When it comes to justice and morality they are not classical liberals nor libertarians but Burkean Reactionaries at best and fundamentalist Christians at worse. They fear anarchy and embrace law, order and good government.

The very beginings of Anarchism lay in the liberal utilitarian belief in self government and self reliance.It is about poltical justice. And as the author of that treatise William Godwin asserted it is about contractual relations between people. No contract is valid if it is not voluntary and freely entered into. This is the basis of anarchism and American libertarianism.

Punishment inevitably excites in the sufferer, and ought to excite, a sense of injustice. Let its purpose be, to convince me of the truth of a position which I at present believe to be false. It is not, abstractedly considered, of the nature of an argument, and therefore it cannot begin with producing conviction. Punishment is a comparatively specious name; but is in reality nothing more than force put upon one being by another who happens to be stronger. But strength apparently does not constitute justice. The case of punishment, in the view in which we now consider it, is the case of you and me differing in opinion, and your telling me that you must be right, since you have a more brawny arm, or have applied your mind more to the acquiring skill in your weapons than I have. OF THE RIGHT OF PRIVATE JUDGMENT

An excellent essay on Libertarianism and the Jury system;
The Jury: Defender Or Oppressor outlines the ideals of American libertarians Lysander Spooner and Benjamin Tucker. See the excerpt below.

Key to Spooners idea of justice was the fact that no Constitution or law could be accepted except by the people, because it is the people who make the laws. And Spooner viewed the real Jury system as not one appointed by the State but made up by the people themselves.

Our constitutions purport to be established by 'the people,' and, in theory, 'all the people' consent to such government as the constitutions authorize. But this consent of 'the people' exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given.

Interestingly this was similar to the position of the great Canadian liberal Papineau in his critique of the Act of Confederation. In light of todays controversy over what is the Canadian Nation State one should remember that the people of Canada never had any say in either Confederation or the repatriation of the Constitution. Just as we have no say in the courts.

In fact on those occasions when the people attempted to have a say in their own government, the Rebellion of 1837 and again with the Riel Rebellion, the Canadian Law and Order State of the day ruthlessly put down the rebellions. And in the case of Riel he was tried and found guilty by a Judge. A jury of his peers would have declared him a free man.

Why shouldn't every law be subject to review by the citizens? When authority springs from the people, why shouldn't it also return to them through a system of of citizen enforcement of the laws? Why shouldn't citizens have a practical, direct, effective way of defending their freedoms and property and that of their neighbors from any undue invasion of the state?

Juries by no means are a prerequisite to a libertarian judicial system, but they are practical and they can work. They've proven that. They have the added advantage of a wide-spread popularity among a broad base of people. It's only a matter of degree to take people from understanding better the concepts behind the jury's right to determine law and fact, to help them to understand other elements of libertarian philosophy. the jury can help bridge the enormous abyss between the current statist society and a future libertarian society. One of the advantages a properly organized jury offers, no matter when or where it exists is that it has its own built-in safeguards which protect it from the kinds of pressure and decay that have affected all government judicial systems. These internal mechanisms which make juries immune from this rot include: jury does not establish precedent because every case is different and must rest on its own merits

  • A jury's powers are limited
  • The requirement that all verdicts be unanimous protects minorities from the abuse of majorities
  • A jury does not need to be subservient to the legal community or to other minions of the state
  • A jury has no vested power interests to protect
  • A jury views justice from a layman's perspective

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    knsheppard said...

    That has to be the most laughable use of the word authoritarian I have read to date. I can't even begin to describe what a butchery of language is going on here, even though I'm somewhere near you on the political spectrum. Do you for one minute think that this sort of rhetoric convinces anyone, friend or foe alike?

    eugene plawiuk said...

    It was not meant to convince but to provoke. When politicians claim to speak out for Law and Order they are speaking as authoritarians. All such claims are based thus on the need of the State, and while conservatives may speak for the need to minimalize the States power or call for less government, they remain defenders and promoters of the very worst aspect of the State, its policing powers over its citizenz. That to me would mean they are calling on the State to be not just an arbitrator but an armed force over individuals.

    knsheppard said...

    Eugene, I can understand usage for provocation's sake. My quarrel lies with my much more historical approach to the conceptualizaiton of 'the State' in political theory, and so with your attribution of the articulation of 'the State's' powers. My historical reading follows the work of Quentin Skinner, The Foundations of Modern Political Thought, whose endpoint is the articulation of the concept of 'the State'. And obviously your approach and mine differ since we come to the question with different philosophical baggage. Perhaps because I lack an understanding of where it is you're coming from, I find your language melodramatic in this instance. Thanks for stopping by my blog! (As an aside, you may enjoy the blog comment tracker cocomment: