An Important Distinction

Column by Paul Hein.

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Governments are established by people who, obviously, do so for their own betterment. Specifically, the government is to protect the rights of its founders. A laudable idea, without doubt. A problem arises when the people who actually constitute the government realize that they have power, and power, it must be admitted, corrupts. The result, as we see today, is a group of people--the government--who recognize no authority but their own, and who have transmogrified from servants of the people to being served by the people. People who are under the control of others in whatever ways the others want, are slaves, albeit their slavery is rather comfortable, with many distractions to keep them from discerning their real status.

Many see anarchy as the way to restore freedom to society. The evil of government can only be removed by removing government. But what of the original purpose of government? Who will protect the rights of the people in the absence of government? If we are left to protecting our rights ourselves, sooner or later something akin to government will rise from its ashes, as the biggest, strongest, and best armed will become dominant--a la the Mafia, for example. In the absence of courts, which are now agents of government, who will decide between conflicting claims? 

It is a good idea to consider two types of crime. They are malum in se, and malum prohibitumMalum in se, as the name tells us, means “bad in itself.” Such things as stealing, killing, raping, cheating, lying, etc., are evil in themselves, and deserving of punishment. A disinterested third party--a court--could determine the extent of the accused’s culpability and direct an appropriate punishment.

Malum prohibitum, in contrast, means bad because prohibited. We are overwhelmed with such prohibitions: driving without a license, biking without wearing a helmet, not paying a tax, etc. These “crimes” are not crimes at all, in the classic sense. Such “crimes” are often merely revenue generating ploys of the Rulers. A genuine crime involves depriving another of his rights. Countless legal decisions confirm this. And if a person has not suffered some loss, he has no standing to bring a lawsuit at all. Thus, a person seeking relief from a court because his neighbor is flying a Confederate flag, which annoys him, should get short shrift from the judge.

This requires that the judge be a disinterested party. If he is works for a government agency at any level, his opinion might be tempered by the knowledge that his employer--government--favors a certain disposition of such cases. Should a judge dismiss a cast brought by government agents against a person accused of the “crime” of driving five miles per hour faster than the speed limit? To do so will “deprive” his employer of a nice fine, and that, in turn, may make him persona non gratawith his bosses. Judges, therefore, in the sort of society envisioned by anarchists, should be freelance workers with no link to government. That is true today of attorneys, although, sadly, they are agents of the court and thus, like the judges, aware that The Rulers are looking over their shoulders. Absent government, however, lawyers would be completely free of the pressure to please—not their clients--but the Rulers.

If the idea of freelance judges, to be agreed upon and hired by the opposing attorneys--sounds preposterous, it is because we have for so long considered it right and proper for them to be government employees. This might explain why the obvious conflict of interest is so rarely perceived. A person hauled into court by a government which charges him with failure to pay them what they demand--i.e., a “tax,”--has two strikes against him before the gavel falls. His accuser cannot claim any deprivation of rights, any harm or damage, by the accused’s failure to pay what was demanded. His lawyer will almost certainly not raise the question of standing, knowing that the judge will look askance at such an idea. Best not to upset the judge, if you are likely to find yourself arguing before him on future occasions. And the judge himself gets his salary from money collected via taxation, and so can hardly be considered a disinterested party. Thus a person whose “crime” is disobeying some strangers’ demand for his money, said strangers suffering no loss or harm from his non-payment, is brought before a judge who is paid from such depredations, and represented by a lawyer who is an agent of the court.

Abolish government, by all means. It produces vastly more harm than good--except for the “insiders.” But the courts do not need to be government courts, and if justice is to be served, ought not to be. They would perform a useful service in dealing with malum in se, as well as throwing out of court such money-raising rackets as malum prohibitum. A large percentage--probably a majority--of the “crimes” dealt with in court today are not crimes at all, but failure to obey the demands of The Rulers. Disobey them, and you’ll have to pay them money, perhaps a great deal. Some of it will find its way into the pockets of judge and prosecutor. This, laughingly, is referred to as our “justice system.”

We could, and should, do without it!

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