How did we develop a society where people are locked away for long periods of time, often for non-violent offenses related to drug addiction? Where torture and institutionalized rape is accepted? Where punishment, rather than restoration, is the norm? Where good legal representation is unaffordable for most? Is this what justice looks like to you? Or can we do better? Can we treat fellow humans with respect and dignity, and create a more fair justice system that protects each and every individual’s rights?
Danger: Retributive Justice and Incarceration
What’s wrong with the current system?
- The US has the highest incarceration rate in the world.
- People of color are disproportionately incarcerated. As of 2007, black males were 6 times more likely to be incarcerated than white males, and Hispanic males were a little more than 2 times more likely.
- Roughly 34% of all prisoners in the US are incarcerated for victimless crimes. Many of these crimes are drug-related.
- The private prison industry is growing which creates an incentive for more prisoners because it results in more profits for investors. Between 2002-2009 the US private prison population grew by 37% and industry-lobbying dollars grew by 165%.
- The justice system protects government. Both Democrats and Republicans create laws that accrue more power to the state. The “justice system” is not fundamentally dedicated to protecting individual rights but to enforcing millions of rules at the city, county, state and federal level - created by politicians to please the corporations, individuals and banks that put them in power.
- There is no restoration or rehabilitation built into the current US Justice System. It’s a condition of neglect, demeaning and violence, almost guaranteed to de-humanize and further criminalize the prisoner. As a result, there’s a high rate of returning to prison again after being released.
- Lawyers and prisoners are expensive. Attorney fees range from $150-$1000 per hour, which is out of range for most Americans. Prisoners are also expensive for taxpayers. In California, it costs about $47,000 per prisoner every year.
Opportunity: Restorative Justice Based on the Protection of Individual Rights
We can create a justice system to honor the rights of everyone – one that is based on respect, care, and healing. Restorative justice aims beyond locking people away and seeks to support them to heal and provide restitution to the people their crimes impact. The operating principle behind a justice system for a thriving world is that of non-violation: you don’t get to violate others or take their property and they don’t get to violate you or take your property except in true self-defense.
Some successful programs for restorative justice include victim-offender mediation, where the victim and offender come together and begin to resolve the conflict and explore ways to achieve justice with assistance from a mediator. Many Native American tribes in the US and Canada also use healing circles where community participants, including victims, offenders, and their families, voluntarily join healing circles to discuss the impacts of the crime. Everyone has a voice and they work together to come up with a solution. Restitution is another approach. Offenders often have to financially compensate victims for damage done. In this way, victims -rather than the state or private corporations - benefit from the work of criminals, Community service and rehabilitation for both victims and offenders are other strategies. All of these approaches honor the rights of individuals and, at their best, heal and support everyone involved and impacted by crimes. We can reform our current justice system and implement programs such as these to cut down on the prison population and begin treating people with the respect they deserve.
In addition to reform, we need to explore and create completely new justice systems that operate solely on the principle of non-violation. This is the goal for Stage 2 & 3 solutions and I believe it’s the key to a truly thriving society.
Let’s step back and take a fresh look at Justice and the Law in ways you won’t currently get in most schools. Let’s start from basics. What is Law?
The principles and regulations established in a community by some authority and applicable to its people
Any written rule or collection of rules prescribed under the authority of the state or nation
OK, so “some authority” writes stuff down and then some people get to enforce it because they call themselves representatives of “the state or nation.” But what if we never signed up for being subjugated to the “authority of the state?” Suppose we do not want to give away our hard-earned money at all, much less to conquer some other “nation state” and take their stuff or to give it to failed banks or bankrupt state- subsidized insurance companies?
That is when whoever wants to call themselves “the authority” has to don their uniforms and guns to enforce their will – with words like “jurisdiction,” statute, license, assessment, eminent domain, state, and city. None of these actually exist in nature. They are all concepts made up by humans that enable a few to consolidate power over others. They circumvent choice, free and natural competition and liberty. We are trained to surrender to these ideas in exchange for “protection,” but how has that worked out? The “state” has been responsible for more death and destruction than any other idea in history – more than 200 million people killed in the 20th century alone – and the majority were not even in wars – they were within the “jurisdiction” of some state or other.
I have found it often seems scary at first to imagine life without the “state” justice system. It was for me. But that’s true for every radical, or “root-level” change. Landowners were concerned their economy would collapse if they got rid of slavery! I believe that by truly following the logic of this, a whole new world opens up, both philosophically and practically.
The first person I found who seemed to have gotten to the simple clarity of this thinking was Frederick Bastiat, an early 19th century French political economist. I felt like someone was sweeping the cobwebs out of my head when I started reading his book, The Law.
“No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic” (pg 20).
“But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime” (pg 17).
“Can the law—which necessarily requires the use of force—rationally be used for anything except protecting the rights of everyone? … It must be admitted that the true solution—so long searched for in the area of social relationships—is contained in these simple words: Law is organized justice” (pg 20)
“The law can be an instrument of equalization only as it takes from some persons and gives to other persons. When the law does this, it is an instrument of plunder. With this in mind, examine the protective tariffs, subsidies, guaranteed profits, guaranteed jobs, relief and welfare schemes, public education, progressive taxation, free credit, and public works. You will find that they are always based on legal plunder, organized justice”(pg 27).
“And what is this liberty, whose very name makes the heart beat faster and shakes the world? Is it not the union of all liberties—liberty of conscience, of education, of association, of the press, of travel, of labor, of trade? In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so? Is not liberty the destruction of all despotism—including, of course, legal despotism?” (pg 51)
“A science of economics must be developed before a science of politics can be logically formulated. Essentially, economics is the science of determining whether the interests of human being are harmonious or antagonistic. This must be known before a science of politics can be formulated to determine the proper functions of government.
Immediately following the development of a science of economics, and at the very beginning of the formulation of a science of politics, this all-important question must be answered: What is law? What ought it be? What is its scope; its limits? Logically, at what point do the just powers of the legislator stop?
I do not hesitate to answer: law is the common force organized to act as an obstacle to injustice. In short, law is justice”(pg 68).
“The law is justice—simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this.
If you exceed this proper limit—if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic—you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?” (pg 69)
“If we are free…. Does it follow that we shall then cease to associate with each other, to help each other, to love and succor our unfortunate brothers, to study the secrets of nature, and to strive to improve ourselves to the best of our abilities?” (pg 73)
So then, what does the dictionary have for a definition of “Justice?”
Rightfulness or lawfulness
Justness of ground or reason
The moral principle determining conduct
The administering of deserved punishment or reward
Now we get elements of what’s “right,” just” and ‘moral.” If we actually use reason to determine what is moral, the only moral rule that I have found that everyone agrees to is the “principle of non-aggression” – no one gets to violate anyone else’s person or property.
The vast majority of current laws, starting with taxation, are based on coercion and violence. You don’t pay the taxes someone else wants to take from you... and they come, with a gun, to take you to jail.
The only Laws that actually represent Justice then, if we use our reason and follow this moral principle, are rules that protect the individual from violation by others. Everyone is treated equally. No one gets special rights to violate someone else just because they got a majority of some group to agree with them or because they have a title and the right to use an army to take more people’s stuff. (A lynch mob is an example of majority rule and points out clearly the limitations of any agreement that does not treat every single person as an equal.)There would be clear and just rules, but no rulers!
But who would enforce the rules if there is no government with its justice department and state appointed judges?
One current idea explained by Stefan Molyneux is to set up Dispute Resolution Organizations (DROs) that would handle disputes and take the place of the current Justice Department.
Rather than the costly, inefficient, and punitive government system we have now, DROs would offer a private possibility to deal with violations and offer competitive protection. They are similar to insurance companies and would be in the business of insuring contractual agreements between people or organizations. If someone breaks a contract, the DRO pays for it, but the clients rates of protection go up. As clients build track records of ethical behavior, their rates go down. Reasonable approaches have been developed using DROs for issues from abortion and child abuse to pollution and murder. DROs incentivize good behavior, rather than simply try to prevent bad behavior by threatening jail-time and punitive measures. Any DROs trying to inordinately raise prices or cut back on services would lose out to the competition because there would be no government subsidies, bailouts or no-bid contracts to give them unfair advantage.
Private mediators are common in divorce and corporate disputes and are virtually always much less expensive and more efficient than the court process would have been.
“If a DRO started to arm itself and try to assume power over other DROs, their costs would skyrocket, they would have difficulty getting their own insurance and they would go out of business very quickly.”
“In a stateless society, there are fewer criminals, more prevention, greater sanctions, and instant forewarning of those aiming at a life of crime by their withdrawal from the DRO system. More incentives to work, fewer incentives for a life of crime, no place to hide for rogues and general social rejection of those who decide to operate outside of he civilized world of contracts, mutual protection and general security.”
“DROs would be very careful to endure that those bringing false accusations would be punished through their own premiums, their contract ratings and by also assuming the entire cost of the dispute.”
- Stefan Molyneux
In a state-free society the triad of private security, independent dispute resolution and competitive insurers creates a self-supporting ring of incentive to maintain a reputation of integrity. To be in business and to be insured, and to be protected, one needs to be trusted. Money alone won’t buy any of these without the state to condone unfair practices. Without the selective protection and special favors of the state, any signs of corruption would dilute respect and destroy the ability of any individual or organization to be able to compete, to get insured or to afford protection.
At first blush, in our current systems, “private insurance” sounds too expensive and unreliable to most people, because of rampant insurance fraud and bailouts, and because in our state-run economy, so many people can’t afford to buy insurance. To imagine the alternative, one needs to envision Stage 2 and 3 of the THRIVE Solutions Strategy, where people have far more income and assets than they currently do without working harder or longer, because of what they would not be paying in taxes that go to wars, Federal Reserve debt, ineffective schools and corrupt state programs.
To learn more about DROs, click here. This area is among those we find most compelling for think tanks consisting of diverse groups of people. A key area to address is the actual body of law…how do we base the body of law on the principle of non-violation? How does it get created? How does the dissolution of the old state and the enhanced wealth of the people interface in time with these new voluntary systems? To explore this question with others, go to the Big Qs section of the site.
 International Centre for Prison Studies (18 Mar 2010). "Prison Brief - Highest to Lowest Rates". World Prison Brief. London: King's College London School of Law.
 Sabol, William J., PhD, and Couture, Heather, Bureau of Justice Statistics, Prison Inmates at Midyear 2007 (Washington, DC: US Department of Justice, June 2008), NCJ221944, p. 7. http://bjs.ojp.usdoj.gov/content/pub/pdf/pim07.pdf
 Libertarian News, Victimless Crime Constitutes 86% of The Federal Prison Population, by Michael Suede. Sept. 29, 2011. http://www.libertariannews.org/2011/09/29/victimless-crime-constitutes-86-of-the-american-prison-population/
 Think Progress, US Private Prison Population Grew 37 Percent Between 2002-2009 As Industry Lobbying Dollars Grew 165 Percent, by Zaid Jilani, Sept. 26, 2011. http://thinkprogress.org/justice/2011/09/26/328486/us-private-prison-population-lobbying/
 Legislative Analyst’s Office, California’s Annual Costs to Incarcerate an Inmate in Prison, 2008-2009. http://www.lao.ca.gov/laoapp/LAOMenus/Sections/crim_justice/6_cj_inmatecost.aspx?catid=3