"When it becomes dominated by a collectivist creed, democracy will inevitably destroy itself." ~ Friedrich August von Hayek
The Pretense of Justice
Exclusive to STR
March 16, 2007
Imagine: you stand in a government court, accused of wearing an orange jacket in public on St Patrick's Day.
You're disconcerted to find that the judge, the court staff and even your own defense attorney are, in addition to the prosecutor, all Irish-American; and as everybody knows, Irishmen think very poorly of the color orange. You have certainly been guilty of bad manners, even though oranges happen to be your favorite fruit.
But you're not much worried, really, because you've checked to make sure and, as you thought, there is no law to prohibit the wearing of orange on St Patrick's or any other day. So you briefed your attorney on that fact and relax, expecting him to get the charge dismissed in the first five minutes because, as everybody knows, if there's no law, there's no crime and no case.
That's when you got your first shock: your attorney told you "Well, I'll try that--but you need to know that only the Judge can say what is and is not the Law."
Sure enough, the case opens and witnesses swear that you were seen in very close proximity to the parade, wearing one of the brightest orange jackets upon which Bostonians ever set eye; and that, at high noon on March 17th! In vain does your attorney ask them whether they know of any law forbidding your impertinence--for the judge threatens him with jail for contempt unless he keeps clear of that topic; for he alone, from his high and mighty bench, will declare what is, and is not, The Law.
He does, too; he winds the matter up by instructing the jury that Title 75, Section 1 of the US Code does require all dress in public places on St. Patrick's Day to be generally green, or in no case orange in any slight degree, and sends them off to deliberate. The verifiable fact that Title 75 hasn't yet been written is of no consequence; Hizzoner has spoken. After two hours--barely enough time to drink coffee (wi' a wee drop o'poteen from the Foreman's flask)--they return: Guilty as charged!
And then you awake, and wonder: was it all a nightmare? You rush to the Internet and look for yourself: not really. Not by much. This really is the way that "justice" is done, when it truly matters to the government.
The key, of course, is that nasty, but pretty well universal, habit of judges to reserve to themselves the power to tell jurors what the law says; juries are by this doctrine entitled to judge only the facts of the case, not the law. In fact, the jury selection process weeds out any potential juror who fails to promise to "follow the law as given by the judge"! The Fully Informed Jury Association (FIJA) has been battling against this gross perversion of justice all its life, and is making some headway. The root of the problem, in my view, lies in Article 3 of the US Constitution, which vests US judicial power in courts, but noticeably does not enumerate many powers that courts shall have. Thus, one of the three branches of government was established by the Founders with no particular delegation or limitation of powers! This is the smoking gun, the escape clause by which they fooled the entire population, then and since, into supposing that logic had been defied and a limited government had been established.
Congress, which is supposed by Article 1 to control all lawmaking, is thereby neatly sidestepped and trumped. Real power rests with the judges; the law is what the judge says it is. Doesn't Congress mind? Isn't that an affront to members' masculinity? Isn't power, after all, the reason they ever joined the legislature? Sure it is, and sure they will create a fuss if the Judicial Branch plays its trump too often--perhaps by convicting people wearing orange jackets, if orange-jacket wearers form a valuable voter block for some legislator. However, when the interests of all branches of government coincide (as in the matter of taxes), the legislature is only too happy to let judges do the dirty work and take the heat. Federal ones don't have to face re-election.
Suppose, though, that Article 3 were amended so as to deny that power to judges and perhaps to require that all juries be informed of their power to nullify laws; would that suffice, for justice? It would certainly bring a vast improvement, and a serious reduction in government size; the alleged income tax, for example, would no longer be enforceable. No law at all would be enforceable, in fact, unless better than 98% of the population supported it, as shown in my STR essay on Jury Power. But would that be enough; would the root of injustice have been pulled?
Some might say that. I do not. Here's why.
My first reason is that all of human history (including the last couple of centuries in the USA ) demonstrates beyond doubt that if you give government an inch, in time it will take a yard. Trying to limit an outfit which has ultimate authority in a domain is as impossible in practice as it clearly is in theory. This fix, therefore, is no better than a band-aid, a temporary easing of pain.
My second is that the above "solution" was developed in this article without first enquiring what "justice" actually means. Let me now repair that omission.
"Justice" is the righting of a wrong, and therefore, to understand "justice," we need to understand "wrong." This is about ethics, and therefore, we need to understand a bit about human nature. The premise I'll use is that every human being is an integral whole, owning his or her own person. And because any premise other than self-ownership would mean that humans are owned by others, no alternative is possible; hence the premise is an axiom. So our starting point is axiomatic: Each human is his own self-owner.
From that it follows that each human has the right to dispose of his own life any way he pleases, and from that it follows that "evil" or "wrong" occurs when that fundamental right is damaged or violated. That is in fact an elegant definition of evil: "any action that interferes with someone's absolute self-ownership right." The final step now shows clearly the true meaning of "justice": the righting of that wrong, i.e., the restoration of the damaged right, as far as is feasible. That's what justice is, and that is all that justice is! Anything else, or anything less, is a perversion of justice--a pretense.
Now we can safely return to the practical aspects of a justice system, and ask whether a government justice monopoly, greatly improved as above, will do the job. We can clearly see that it certainly cannot, ever. For government is in its fundamental nature an organization that violates the axiomatic human self-ownership right from its very get-go; it does nothing other than take away from individuals the right to own and operate their own lives! Every single time it writes a "law," it commits gross injustice, stabbing that right in the heart, over-riding it, saying No, we control you, the choice is ours, not yours. Thus the very nature of government is to violate rights, to commit evil, to deny justice, each and every time it gets on its hind legs. To suppose that such a rights-violating entity is capable of acting as a rights-restoring one is ludicrous on its face, a fatal contradiction.
I'll leave for another article the important question of how, absent government, a true justice system might exist and operate--except to say that where a demand exists, the free market will certainly satisfy that demand. For now, we can conclude that you can have government, or you can have justice; but for certain you cannot have both. Justice is vitally important, so it's time to stop pretending, and get real.