On the Other Hand...

by Jim Davies

Time for Free-Market Justice


In the wake of the OJ fiasco, some of our so-called leaders are at last waking up to the possibility that there may be something wrong with the justice system, and that's very good news indeed. So far none of them have proposed going nearly far enough (typically, they ask only "How can we fix the LAPD?") but it's a start, and if a serious and proper reform were achieved, that would be a very fitting memorial for Nicole Brown and Ron Goldman.

First, it's important to note that some elements of our justice system worked very well. The jury, in particular, astonished me in how good a job it did. Some months ago I wrote here that anyone who would submit to a long government questionnaire, and to 9 months of legalized imprisonment, was a "loser".

Well, in that point I was wrong, and apologize to any juror who was offended. Despite those outrageous impositions, this jury did it right. They were asked to decide whether or not there was reasonable doubt in the case of the California government vs. O J Simpson, and they did so; and judging by the news conferences given by two of them, they did it logically and well.

So in redesigning a justice system, along the lines that follow, we should not throw out the baby with the bathwater. The priceless principle that a randomly chosen jury of ordinary people should exercise final judgment over the experts, lawyers and officials (and laws, if any) is one aspect that must certainly be kept. It's the final barrier against government tyranny for every one of us. 

The Components

Our present justice system has four parts: (1) Law writers (2) Law enforcers and investigators (3) Courts and (4) Prisons.

I propose that #1 should be abolished outright, that #4 should be drastically reduced in scope, and that #s 2 and 3 be dramatically reformed.

Today, all four of them are monopolized by government - we have, therefore, a thoroughly "socialized" justice system, and so it's little wonder it's in a mess. We in this free country have rightly rejected a good deal of socialism. Last year we refused to let Hillary thrust socialized medicine down our throats. We never allowed government to socialize transportation, or fuel, or other elements of production and distribution in the economy - as was done, to their great cost, by several other Western countries, not to speak of the East.

Yet we did allow socialized schooling, as early as 1850; then socialized mail, so we now suffer accordingly. We also lose big under socialized "defense" and, tragically for the poor, socialized "welfare". And here, socialized "justice".

So there's very ample opportunity for reform. Here's what a free-market justice system might look like, in bare outline, using the same four elements above.

1. Laws would end. The notion that any of us, acting as a majority, should be entitled to force a certain behavior pattern on someone else, is obscene. It has very little to do with right and wrong, and a great deal to do with the arrogance of power. Instead, courts would judge each dispute on its merits, not on a code so complex that not even its Enactors had time to read it all.

2. "Law enforcement", as such, would therefore also end. The business of investigating alleged wrongdoing would fall to the market, and would be performed far better precisely for that reason; the market ALWAYS outperforms a government monopoly. In popular culture the "Private Eye" from Sherlock Holmes onwards is always smarter than Sergeant Plod, and such fiction is well rooted in fact. Once the "free" services of the socialized police have vanished from the scene, we'll be able to buy the competence we want with our own money, no longer stolen as tax. And once investigative resources are no longer wasted pursuing "criminals" without victims (drug dealers, prostitutes, smugglers...) they will be all the more effective in tracking down those who DO have victims.

Of particular note from the OJ case, no for-fee investigation company is going to risk its entire reputation in the market by fabricating evidence, yet the government monopoly in Los Angeles routinely does precisely that, because the sure, swift discipline of a commercial, competitive market is totally missing. If a guilty man went free, as many think, that was the real cause; it was the police who produced the "reasonable doubt", not the jury.

3. The Courts too would operate for profit, and so the spectacle of a year-long saga would be rather improbable. Nor would any court company limit its own market by excluding any attorney of the litigants' choosing (so much for government licensing of lawyers, and for their high price) and none would risk its prime asset - a reputation for fairness - by excluding evidence like Judge Ito excluded most of the enormously important Fuhrman tapes.

To the extent that a court company failed to deliver well-formed and fair judgments, with juries unless both parties waived that right, it would fast lose market share and be replaced by ones that did. The free market at work.

4. Perhaps the most important of these four reforms would be in the area of sentencing. Suppose A has been found guilty of raping B. What's to be done?

If (but only if) the jury judges A to be likely to repeat such an aggression, then it will exclude him from the rest of society - and for that single reason, to protect it from him. Unfortunately, there will be some like that. For that sole reason, a few prisons would remain - but prisons in which inmates could retain the dignities of earning a living and relating to their families.

But in all sentences, the emphasis would be on restitution , which is the whole purpose of a proper, moral justice system - to set right what is wrong, as far as possible. Contrast the vindictive, revenge-based system of today's government monopoly! So whether behind bars or not, the guilty would be required to work to compensate his victim. Justice demands no lesser reform.

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