Rule By Overseer

Legal System, Police Statism, Statism, Totalitarianism
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Radley Balko highlights the ridiculous case of a man arrested for interfering with police for filming them while they are on the job. Considering a passive observer, filming an arrest, to be “interfering” must be a special police corollary to the uncertainty principle that I missed in physics class. A friend asked the question, “how can one know what not to do?” This is a good question. If the laws on the books, and publicly clarified by the “authorities” are no shield, then what do we have?

As I mentioned before, police interactions with “civilians” are similar to the interactions between enslavers and slaves of the past. The rule on what can and cannot be done are set by the government official with whom you are interacting. Instead of rule by law, we have rule by overseer. Instead of viewing the police officer with whom you are speaking as a man as yourself, consider him a would-be slave master. He is has little reason to doubt his superiority to you. He has rights, and we have responsibilities.

How can it be otherwise? Whenever there is an asymmetry in recognized rights, there is great danger in interacting. During such interactions, the well-being of the oppressed is almost entirely dependent on the goodwill of the oppressor.

Consider the risks involved when an ordinary citizen has an interaction with the police. If a police officer is the violator, except in extremely egregious cases, nothing will happen to him. He will not be immediately fired after the accusation. A very bad outcome for a police officer will be him being fired, with no criminal record, and the ability to compete for a private sector job just like everyone else. Even in the case of him being prosecuted, he will likely be acquitted, and even if he is found guilty, he will be punished much less severely than an ordinary citizen.

On the other hand, consider the risk for a citizen. If a person with a regular job is arrested and held for several days, he may be fired from his job. An employer may not be able to afford to employ someone who is not at work, irrespective of the reason behind the absence. That means that even a misbehaving officer can ruin a person financially, even if that person is ultimately cleared of any wrongdoing. As I have mentioned before, this asymmetry is similar to that which existed between blacks and whites in the US (and especially the American South) prior to the middle of the 20th century. In such an environment, rather than being oppressive, segregation is actually desirable for the oppressed class. Unfortunately, the government does not permit mundanes, as the heroic William Norman Grigg calls ordinary citizens, to segregate themselves from the state.

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An Issue of Monopoly Justice

Legal System
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Vail Daily reports an interesting case:

Martin Joel Erzinger, 52, faces two misdemeanor traffic charges stemming from a July 3 incident when he allegedly hit bicyclist Dr. Steven Milo from behind then sped away, according to court documents.

Milo and his attorney, Harold Haddon, are livid about the prosecution’s decision to drop the felony charge. They filed their objection Wednesday afternoon, the day after prosecutors notified Haddon’s office by fax of their decision.

. . . Erzinger manages more than $1 billion in assets. He would have to publicly disclose any felony charge within 30 days, according to North American Securities Dealers regulations.

Milo wrote in a letter to District Attorney Mark Hurlbert that the case “has always been about responsibility, not money.”

“Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo wrote. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”

Hurlbert said Thursday that, in part, this case is about the money.

“The money has never been a priority for them. It is for us,” Hurlbert said. “Justice in this case includes restitution and the ability to pay it.”

Some critics of libertarians claim that wealthy people could regularly “get away with murder” since they could simply pay restitution rather than be punished. This position makes the error of assuming monopoly justice, however. This case is a problem of monopoly justice, rather than of wealth. The fact that the state is the monopoly provider of justice means that the victim only has a single place to make a complaint, and if the prosecutor does not provide satisfactory service, he simply must live with being dissatisfied. There are no competitors to which he may appeal. Under a stateless system, arbitrators would have to produce rulings which tend to satisfy all parties. Without a state, a felony conviction would not automatically have the power to severely curtail a person’s ability to earn a living. Without a state, a victim would not be required to accept an “advocate” who disregarded the victim’s own wishes.

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Aphoristic Observation: Retributive Punishment Is to Restorative Justice as Egalitarianism Is to Equality

Legal System, Libertarian Theory, Private Security & Law
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Instead of raising the victim back up — to balance the scales of Lady Justice, so to speak — it seeks to drag the criminal down to the victim’s diminished level.

~*~

Cross-posted at Is-Ought GAP.

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A Short Defense of Punishment

Legal System, Libertarian Theory, Non-Fiction Reviews, Private Security & Law
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It is particularly prevalent among libertarians and practitioners of Restorative Justice to favor restitution and reject punishment, or to at least reject retribution (private punishment “owed” to the victim / “just deserts” / “getting even”). I find this brief argument, from Getting Even: Revenge as a Form of Justice by Charles K. B. Barton, p. 93, to be persuasive:

1. Humans are innately social beings who can flourish and achieve their full humanity and potential in terms of moral and spiritual maturity, only in society.

2. A human society is a moral community.

3. A moral community is such that its members are mature, morally responsible individuals who hold one another accountable for wrongs to fellow members and to the common good.

4. To hold persons responsible and accountable for wrongs to fellow members and to the common good is to consider them liable for blame and punishment for such wrongs, independently of functionalist and instrumental considerations, such as expressing disapproval or deterrence—though obviously such considerations are not irrelevant to impositions of punishment.

5. To consider persons liable for blame and punishment for wrongs independently of functionalist and instrumental considerations is morally to accept retribution.

Using this explanation as part of an argument, there are two conclusions which follow:

6. Human individuals can flourish and achieve their full humanity, including moral maturity, only if they morally accept retribution and retributive liability for their wrongful actions.

7. Since individual flourishing and the achievement of one’s full humanity, including moral maturity, are good things worthy of being pursued, retributive punishment within the limits set by the principles of justice is also a morally good thing which may be pursued and, unless contra-indicated by countervailing instrumental and functionalist considerations, or by the appropriateness of mercy and forgiveness, ought to be pursued.

I highly recommend Barton’s book Getting Even. And his book Restorative Justice: The Empowerment Model is likewise excellent.

For a more comprehensive discussion about the key role that mediation must play in any legal system that aims to achieve justice, see my working paper A Call for Mediation Casebooks.

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