On the Other Hand...

The Private-Justice Alternative

by Jim Davies

"Private", that is, as opposed to government justice. A justice system in which no case comes to court unless a real victim brings it; one served by private companies competing for business in the areas of detection, adjudication, and resolution and promoting themselves on the basis of efficiency and fairness.

It sounds radical, but in fact there's a great deal of private justice all around us. There are more private policemen, for example, than government cops. And there is a large and fast-growing private-court industry, also known as arbitration services. These and other system elements (notably contracted-out prisons) have arisen because the government alternatives are so appallingly expensive, slow, unfair and arrogant; if competition were allowed in all parts of the system, the market would have replaced them years ago.

The need for a comprehensive, free-market justice system should be obvious from one single, shocking fact alone: that despite our claims to be a "free country", American governments imprison more of their populations than any other on Earth. The control of guns, courts and prisons is the ultimate buttress of tyranny, and the sooner that control is broken, the sooner we shall be genuinely free.

Some of the key objections raised however are that private justice would ill serve the victims of genocide, and hermits, and those too poor to afford the prices charged. Let's examine these and test for any validity.

Genocide

Defining this as the mass killing of human beings, I cannot think of any example that was not carried out either by governments directly (Hitler's, Stalin's, Pol Pot's) or by mobs operating under the protection of, or with the tacit approval of, government (eg the Turkish slaughter of Armenians.) Prof. R J Rummel's book "Death by Government" is a truly terrible catalog of this phenomenon, and if there are any "private genocides", they are insiginficant in comparison to the monstrous bloodbaths in which goverments immerse those in their "care" in every age and in many different countries and cultures.

The suggestion, therefore, that governments can properly administer justice for their own crimes of genocide is ludicrous on its face. Imagine: a group of Nazi judges, sitting on the Nurnberg Tribunal!

But, it might be said, government judges did sit on that Tribunal, but they were from the other, victorious governments. True. Was justice done? - hardly. A few were hung. A few others took their own lives. Some others were kept behind bars; one of them (Hess) until he died, presumably so that he could not publish what he knew about the wartime crimes of the Allies. Nobody was compensated, that I recall; such compensation to victim families as has taken place was done by later German governments stealing other victims' money and handing it over, sometimes to the government of Israel. And recently, a little compensation has come from Swiss banks, largely after feeling the pressure of bad publicity. Nurnberg was an exercise in revenge, and was in any case highly questionable in its writing of retroactive laws.

Now, I don't know how any court, government or private, can administer adequate justice after a disaster as horrible as genocide. But since governments are always the perpetrators, it's a lousy idea to let them also be the judges. Private courts, though they might hardly do much better, could not do worse.

The Hermit

The case is that of one who lives apart from society, and who is murdered. Who will bring action against the perp, if not government?

First, the case may be rather unrealistic. Hermits have parents, and possibly siblings; news of a hermit's death (presupposed by the objector) is most likely to reach those members of his family and if so they are the ones who could bring action.

Futher, many hermits have a following. They are gurus; they may have interaction with humanity once in a while to tell what they have learned. If so, their followers too would be able and interested to bring action.

But okay, allow that once in a rare while a hermit stays 100% apart from all contact with the rest of the human race, and yet that someone finds a motive to murder him; that too, we must note, strains credulity, for what motive might there be? - but, say it happens anyway.

In that rare instance, the only type of person likely to want to bring an action is the one who wants to protect some class of society (dwellers in the nearest village, for example) that fears the killer will repeat his evil deed. No, I grant it is not likely. But I do not grant that it is less likely that, in identical circumstances, a government police and justice system would pursue the killer with any probability of success. They have other fish to fry. Who, they'd think, cares about an unknown hermit? He doesn't even vote!

The Poor

The objector knows, I trust, how "The Poor" have been used as a feeble excuse for all manner of socialistic intervention in the last 150 years. We should therefore tread very carefully in using them in support of government justice.

There is in any case a simple way in which a market in justice would compensate those too poor to afford the fees. Enterprisers (like those today scorned as "ambulance chasers") would be watching out for exactly such cases, and would offer to front the money in exchange for a share of the restitution awarded.

Yes, that would mean the actual victim would receive only a share of those damages, his "angel" pocketing the rest. But competition would operate there too, and so the price of such assistance would be kept low.

Is that better or worse than the situation today, where government "justice" purports to be blind and to serve the poor as well as the rich? - I suggest it is one of the best known facts in what now passes for a justice system that there is one standard of service for the rich, and a far lower one for the poor. A market in justice would have a very good chance of delivering something close to impartiality; if today's monopoly does so, it's by coincidence. Private justice might not be "perfect", whatever that is, but it would for sure be a heap better than what we have, even in the case of the indigent.

A Wider Question

That is, whether it is ever sensible for justice to be provided on the basis of collectivist socialism? - "To each according to his need, from each according to his ability"? I propose that that evil principle is no more valid for justice than it is for "education", roads, "defense", health, mail delivery, welfare, or any others of the myriad "services" today thrust down our throats by government monopolists. Whyever would it be?

I warmly commend the objector to a reading of Lysander Spooner. His recognition of the importance of juries throws a heap of light on this matter.

He too realized that if government is to exist and make laws (something I do not grant, but suppose it happens) then it is of the utmost importance that it should NOT also sit in judgement on those it claims to be lawbreakers!

It is absolutely vital on its face that a wholly independent entity should do that judging. Spooner focussed on the role of juries, which he saw as essential in curbing the arrogance of government power; they MUST, absolutely must, have and exercise the right to be judges of both law and fact. Otherwise, if they are to accept all laws as just and applicable without question, they become no better than government agents! - something perilously close to what we now actually have, in practice in the government's justice monopoly.

It is that concern, above all others of mere efficiency and cost, that cause me to propose that justice be one of the first functions removed from government, not among the last, as if by afterthought. It is desperately dangerous to let the rulers judge those who protest or question their rule; it is a travesty.

© Copyright Jim Davies 1999

Jim Davies lives in New Hampshire,
and enjoys contemplating which way is up.

The above is Edition # 299

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