Ripping away the judicial mystique
Law, Economics ·Friday April 15, 2011 @ 00:19 EDT (link)
Theory: the reason why legal penalties are so arbitrary—arbitrarily harsh, that is, never arbitrarily low—is that the courts do not want people to be able to test them or to become a useful service. They want to be a "big deal"; a false pomp and majesty where god—or the king, acting in his stead as was the "divine right" myth—comes in and blesses the worshipful supplicants with guidance and a verdict (or directs a jury to same, doing their best to ensure they don't do anything "radical" such as nullifying bad law). Fees are added everywhere for everything; reams of paper must be filed in triplicate. If it were commonplace and simple, the shroud would be removed; it would be a common thing for two disputants to drop in (rather than have the most inconvenient date possible assigned to them by god's secretary, forcing them to come to a distant location with poor parking), argue without the redoubled expense and obfuscation of lawyers, get a verdict; and the detailed verdict would be published on the Internet for discussion and critique.
Yes! Critique! Why should not any man with half a brain, even without a political appointment be able to discuss with his fellows the judge's—who after all, is but a man—decision, the weighing of evidence, the logic or lack thereof, fairness, and so forth, for both civil and criminal matters. The jury may not nullify: but the court of rational men may put the law through the wringer! Sure, court cases are discussed today: but usually just the big ones, and with whatever drabs and trickles of information the court allows to slip, graciously, to the unwashed masses. We can do better than that; these are our employees, and their work product is ours, lock, stock, and streaming video.
So artificial barriers to use are set up: the supply of judges is artificially limited; they are given powers to jail people for nothing ("contempt"), rather than the powers of a private property owner or agent to merely remove disturbances. After being made artificially scarce, they are robed and given high benches in expensively furnished (thanks, taxpayers!) rooms to sit and pronounce judgment, frequently on the unwilling who have done no wrong. The plethora of laws aid them in this power, and together with the "prosecutor" they gang up on individuals to extract terror, wealth, and life (time) from them in a singularly corrupt and involuntary system.
How would a free system be different? First, the supply of judges would be a market good: anyone could offer their services, and respect and thus use of particular judges would depend on their reputation for fairness. Nor would "the rich" have particular advantage: a judge whose decision was "for sale" would not attract consenting customers, and that's the only kind of customers that would be possible. Due to the supply, and the fact that customers have to be persuaded rather than being forced, judges would be incentivized to make their service convenient: paperwork at a minimum; some may forbid lawyers. Judicial services will also want to demonstrate their openness: in most cases court will be videoed, and generally broadcast live on the Internet with the exception of some sensitive matters which would be edited and broadcast with necessary redaction. To show fairness, judicial services would open their records, publish their cases (transcripts and the aforementioned videos), and judges would (as they do now) write the reasons for their opinions, but with a view to being approachable rather than an eye to the law journals (or some may write two opinions, at their choice).
These services could indeed be put to the "test" cheaply (much like hidden camera shows evaluate mechanics to see if they're ripping off clients): people could see how the same dispute was resolved across adjudicators without paying an arm and a leg in court and lawyer fees, losing a day of work (heck, the judge might even come to the person's place of business or a mutually agreed-upon spot, especially lesser-known ones desiring to build a good reputation), and with the risk of jail or other rights infringement. (Can't help you regarding victimless "crimes"; they wouldn't exist. I suppose a court could be asked if there was sufficient evidence that someone used drugs for a private employer, or, heck, a parent, though….) For actual crimes, in the Rothbardian sense of aggressive acts against individuals or their property, the opinion of a court can be taken to one's private protection agency or dispute resolution organization (DRO) and justify proceedings—including retaliatory force—against the criminal.
