from The Psychology of Liberty
With Self-Governing Capitalism, the keenness of the market and the accompanying widely-practiced virtue of logical thought would resolve many problem areas. Most intellectuals would no longer have contradictory answers and bureaucrats would no longer have agendas. The formerly governmental services of police, law courts, and military would be replaced by private services. These services would be run by people who have only their honesty, integrity, rationality, and reputation to offer the market and attract customers.
A governmental title could no longer be used for committing, at best, injustices and, at worst, atrocities. There would be no silent or bold usurpations of rights. And no longer would there be vastly unknown, perplexing, and unintelligible laws that allow something to be legal one day, but illegal the next (or vice versa). The voluminous legal texts that currently exhaust the time and effort of myriad lawyers would be things of the past. The legions of new law school graduates desiring to make the system work better would also find their job descriptions changing. Only objective law would flourish, because people would see no value in anything else. Certainly the examples this would set for the entire world would be potent.
Much of common law, or more derivatively, customary law,5 would be transferred to and utilized by the new capitalistic legal system. Of course, this would include aspects of the present judiciary system that have been interpreted and adjudicated objectivelyfor example, much of contract law, copyright and patent law, and some of the laws dealing with the genuinely wrong acts by real criminals.
Since problematic and unjust law comprises much of the current justice system, it would have to be discarded. No longer would a legal order be imposed on the populace. So, people would no longer have to invent ways to deal with ineffective and inefficient judicial and law enforcement processes. Such a situation has tended to breed both corruption and illegality.4
Though a full list of the legal systems injustices would require a book in itself, a few ought to be noted. The amount of lawsuits filed yearly in the United States remains unsurpassed by any other country. No reasonable notion of loser pays (for the other partys legal expenses) is present, which definitely fosters such litigiousness. Contrived malpractice laws and lawsuits steadily undermine the essence of contractual agreements, and they drive up the prices of goods and services. Rulings in various tort cases of purported liability and negligence award millions of dollars to supposed victims; the idea of personal responsibility is usually neglected. Enormous finesin the form of punitive damagesare also imposed on companies as reprimands for wrongdoing. This is thought to be a fair practice in personal injury cases; corporations are supposedly responsible for harm done, and not those operating them. More generally, scores of arbitrary differences exist between state and federal jurisprudence. The various states maintain appalling inconsistencies in their laws.
Invariably, we witness the gross inefficiencies of a legalized monopoly, which does not adhere to objective law. Spooner (himself a legal scholar) eloquently noted these problems in response to the contention that justice is the goal of the courts. Again, one should keep in mind that only a small fraction of todays laws and corruption existed in his time:
Studying justice as a science means discovering the fundamental nature of human beings and applying this knowledge to human interactions. In todays legal context, justice is seldom clearly defined and especially not taken to its conceptual roots (i.e., related to the concepts upon which it depends). Naturally, those with vested interests in the maintenance of this system proclaim that we have the best legal system, the fairest system, of any country on Earth.
Justice, as a political concept, is derived from the concept of rights. In simple terms justice means honoring, upholding, and enforcing these rights. Without logically validated rights via the correct political philosophy, full justice is unattainable.
If you have ever browsed in a law library, you probably have realized that justiceto say nothing of clarity, comprehensibility, and economy of thoughtis a distant idea for the present legal system. Mostly what one will find are millions upon millions of pages describing and circumscribing what people can and cannot do in every conceivable form and facet of their lives. The texts fill countless bookshelves. To think that these multitudes of statutes and precepts are necessary and proper for the institution of justice is to avoid recognition of legal contradictions. Of course the current system depends on such avoidance; it does not want people to think and ask probing questions about the foundation of the legal order and system. Justice requires that one think critically about the common assumptions of many experts.
As a consequence of our present legal order, the practice of law is frequently treated as an adversarial game (as Spooner noted). Many attorneys, judges, and legal scholars often promote a win-at-all-costs strategy that unabashedly dispenses with the obligation of discovering truth. To be a zealous advocate for ones client is deemed necessary to combat the often zealous plaintiff or prosecuting attorney, each being more partial to their own interests than to justice. One finds that partiality and impartiality are terms used in the current system as substitutes for rationality and objective law.
Those able to opt out of this antagonistic system and utilize private mediation (for instance, in the case of divorce) and arbitration (for instance, in cases of corporate business and international commerce) are able to save a great deal of time and money. Additionally, mediation and arbitration foster safeguards against future problems with disputes and potential disputants.5
Yet the adversarial system imposes final authority, so certain practices remain in spite of their irrationality. Letting criminals go free based on legal technicalities is common. For instance, physical evidence that proves guilt might have been obtained illegally. Or, the offender might not have been read the Miranda rights, which were designed to prevent self-incrimination (as provided by the 5th Amendment to the Constitution; hence, the self-responsibility-negating phrase taking the 5th).
The practice of plea-bargaining is also common. Essentially, offenders (and those coerced by prosecutors into false confessions of offenses) agree to be sentenced on lesser charges. This sometimes occurs in exchange for giving testimony against others (i.e., serving as allegedly trustworthy witnesses for the prosecution). Additionally, offenders sentences are sometimes shortened through early parole, typically on the grounds of good behavior or on account of a high demand for prison space.
Also, in the present system, the phrase innocent until proven guilty can be misinterpreted. For instance, when incontrovertible evidence clearly shows guilt in some criminal cases, the trial still proceeds as if the evidence were not there. Unfortunately, innocent until proven guilty can be used as a shield by defense lawyers, since their allegedly immutable obligation is to provide a strong defense for their clientseven when they are guilty. One would be hard pressed to find any greater denial of the ideas of honesty and self-responsibility.
Granted, in the matter of due process, the burden of proof (specifically, the burden of persuasion) is on the accuser or plaintiff. He or she has to establish validity to the allegations. But sound evidence (whether prima facie or conclusive) must be able to dissipate the presumption of innocence with the accused. In general, the presumption of innocence must be a rebuttable presumption. Due process of law should involve no preconceived notions. They only deter the administration of justice.
The legal situation is worsened by the time-consuming jury selection and judgment process. Basically, individuals are detained from their personal affairs to sit on a panel of peers who usually are not well-versed in the rule of law and principles of justice. They are then informed by a judge and, oddly, prohibited from asking questions and actively participating in the fact-finding mission. This process is made even poorer by peremptory challenges, which are attempts to leave trial courts filled with supposedly unbiased or fair and impartial jurors. However, they instead leave trial courts filled with uncomplaining jurors who are willing to sit through a drawn-out legal processone that often involves unnecessary showmanship, unsubstantiated allegations, unconvincing arguments, irrelevant emotional pleas, unseemly diatribes, and misrepresented, subjective interpretations of the evidence. Such is the peoples civic duty.
Many cases can be used as examples of the problems just outlined. Probably the most notorious is the criminal and civil trials of O.J. Simpson. Regardless of how many legal experts said it was an exceptional case, that legal saga stood as an indictment of the jury trial system. It also exposed many of the central flaws in the legal system as a whole.
The division between criminal and civil trial proceedings is one case in point. That a criminal trial requires a judgment of guilt beyond a reasonable doubt whereas a civil trial judgment is determined by a preponderance of the evidence confounds the issue of guilt or innocence.
To confuse matters more, the State has commandeered interest in arresting, convicting, and punishing criminals. This often leaves the accuser or plaintiff to watch on the sidelines or to testify as a mere witness. Crimes committed are considered crimes against the State. In actuality though, they are crimes (or rather, torts) against the victimsand they should focus primarily on restoring those harmed (as will be discussed shortly). As was the case with customary law, the focus should not be merely on punishing the guilty. When no reparations are made, the victim gets victimized again, adding insult to prior injury.
In any crime, including so-called civil wrongs, all of which ought to be designated as torts, the person charged is either innocent or guilty (and thus liable for damages). If the current evidence (and the scientific ability to interpret it) fails to elucidate the truth in the matter, one must treat it as unsettled. If the person accused turns out to be innocent, then he or she should be restored monetarily for the time spent in the process of determining guilt or innocence. This is the only fair way to deal with suspects, and it is in line with the presently unembraced legal precept of loser pays.
Deliveries of verdicts that run counter to the nature of the evidence (as in the Simpson criminal trial) are obviously contradictory to justice. But immunity from final justice is granted by the constitutional provision of double jeopardy under the Fifth Amendment; one cannot be tried for the same offense twice. Once again, the Founders wanted to prevent the ill consequences of the State, while keeping the essential framework of the State intact.
The unfortunate legal outcomes of monopolistic government are simply inevitable. Even the genesis of needing lawyers or legal counselas well as trial by juryresulted from the intrusive operations of the State. The State gradually fostered an environment in which the victim or plaintiff and the accused or defendant needed assistance in legal proceedings. Historically, this represented a movement away from customary (mostly objective) law towards corrupt state law.5
Questioning the present legal system brings us back to our initial realizations about capitalism and the kind of politics that coincides with it. In a world of Self-Governing Capitalismwhich will be called just capitalism from now onpolice companies and legal institutions would profit by convincing customers of their excellent ability to enforce objective laws. Individuals would be protected from physical force and fraud, as well as restored when wronged. Fraud, breach of contract, and extortion are variations of force;76 they involve taking anothers property in an involuntary manner or without informed consent.
Since justice agencies would now have to compete by offering quality services, court systems would value time in relation to money and justice; todays mockery of the right to a speedy trial would disappear. By having to make profits, justice agencies would have to honor reality, instead of operating in a context of stolen wealth, where certain degrees of lethargy, corruption, waste, and incompetence are considered normal.
Market forces would determine the most helpful and efficient types of protection. Common and customary law principles and precedents would provide indispensable guidance for court systems (as they do even in many cases today). Various businessespossibly branches of newly unregulated, and therefore much more affordable and reputable, insurance companieswould cater services accordingly.
As in any productive enterprise, if something does not work, it rightly ought to be fixed or replaced. Because the current policies of dealing with crime are both expensive and ineffective, different approaches would be taken to ensure a peaceful society. They would yield a system that functions both morally and practically.
Seldom is it recognized that the current shortage of jail cells in which to put away criminals is largely a result of a legal system that infringes on rights. That is, government creates so-called crimes by failing to recognize the absolutism of individual liberty. All the nonviolent victimless crimes, which involve interactions between consenting adults, fall into this category.
Under capitalism, police or security forces would be hired to protect property and the people who own it and use it. Consequently, enforcement agencies would be less likely the focus of suspicion and even contempt evidenced today. Many police forces currently view intimidation and punishment as good means of creating trustworthy and respectful citizens. The bulk of society oftentimes faces crime with the mindset that pistols, batons, handcuffs, and jail cells (and, for some, gun control laws) will help reverse criminality. At the expense of human dignity, police follow political orders of constituents to continue cracking down on criminals. A good us against bad them attitude tends to evolve so that them can be anyone who disobeys the governmentally established rules of conduct.
Of course, this sort of antagonism is counterproductive to the development of mature, independent people who treat themselves, and hence others, with respect. By failing to see the psychological factors involved in wrongdoing, the present system makes it very hard to effect positive change. Instead of treating most criminals (particularly nonviolent ones) like individuals who have made seriously wrong choices, our present system often treats them like base creatures incapable of altering their behavior and living a life proper to a human being. Typically, they are just thrown into prisons to sit idlywasting time, space, and money, as well as dissolving any chances for change and growth. Soon, the incarcerated are contemplating how much they hate the system in general and people in particular.
The alternate approach would entail restoring the victim(s), which usually would involve payment and time expenditure. Aggressors would have to work to earn money for restitution, either within secure environments or on contract with various companies.4 & 5 This approach, coupled with crucial broader political/economic changes, would quickly reduce crimes in society. Rather than facing a prison sentence (and accordingly free room and board, as well as the situation of being nonproductive), convicted persons would face a future of work in which most of the fruits of their labor would go to those they had wronged. Instead of being punished, they would be held accountable for their actions and would have to make amends.
Yet today some criminals permanently impair or disable innocent persons. No one who intentionally takes anothers physical well-being should be able to do so with impunity. While monetary restitution often cannot repair personal injury, it is nonetheless one of the most reasonable alternatives. Like in the case of theft or destruction of property, the perpetrator must forfeit part of his or her rights. He or she in a sense becomes indentured to the victim until reparation is made.
In cases of rape, in which extreme physical and emotional pain has been inflicted, the perpetrator has conveyed to rights-respecting individuals that he is unfit to live with themhe is an imminent threat to the lives and well-being of others. Such persons would be removed from society as well as made to pay restitution; facilities would be created for this. Exactly how long is necessary for the threat to be either eradicated or minimized is something the victim and adjudication services must confront.
Murder involves a different model of rectification, though. It is the most severe instance of human brutality, the nadir of human behavior. Deliberately taking the life of an innocent human being must have the gravest consequences. Murder means intentionally extinguishing an invaluable entityan entity that creates the very concepts of value and rights. Therefore, any objectively and unequivocally proven murderer must face (and should expect to face) an outcome equal to the fate of the victim. By deliberately destroying an embodiment of rightsa human beinga murderer forfeits his or her own rights as a human being. Namely, the right to life is revoked. No victim is present to be restored monetarily or otherwise. Friends and family may desire the murderer to pay them for the loss, but one who murders should have no such luxury. Execution could also be seen as the application of self-defense ex post facto: Certainly the innocent victim (barring a pacifist) would have used lethal force to stop his or her own murder, had he or she been able.
Yet, some may feel that human beings sometimes cannot control their actionson account of deep drives and aggressive impulses (or brain chemical imbalances) that mysteriously come and go. Hence, they may espouse a variation of the not guilty by reason of insanity plea. Or they may advocate so-called lesser degrees of murder when it is committed, for instance, in the heat of passion or without premeditation. On the other hand, some may explicitly honor a moral code that commands one to forgive murderers, on the grounds that no one can help itwe are all sinners.
Some may direct sympathy at a murderer and his or her existential plight. They may conclude that a murderer is somehow not ultimately responsible for his or her actsinstead, society is. Some may even have great plans for rehabilitating murderers and giving them a second chance. This of course overlooks the magnitude of violating the first chance and trivializes the victims right to life. It also dismisses the threat murderers pose to others.
Some may even think that executing a murderer is equivalent to murder itselfthat it reduces seekers of justice to wretched seekers of vengeance. This simply fails to differentiate someone who murders from someone who kills a murderer.
The option of imprisoning murderers for the rest of their livesand making them work to provide for the victims dependentsraises some important issues. Those who currently favor life imprisonment over the death penalty usually do not address the question of who pays for it. If the imprisoned murderers do not (via their wages earned in prison), certainly no one should demand that others, or society, or government do so. Moreover, the risk may be significant that murderers will escape and once again pose a threat to members of society, or murder those who keep watch over them and take care of their needs.
However, despite the arguments for (or against) execution of murderers, we need to take into account the present legal situation. Since the Statevia all the legal problems previously outlinedhas repeatedly convicted, and at times executed, persons who were later found innocent of murder, a moratorium on the death penalty is probably prudent. Correct due process is imperative.
The topic of murder, however, does not address the issue of why people destroy the well-being of others. We, as human beings, should never have to deal with such evil behaviorfrom individuals who completely disregard the meaning of existence and their own worth and humanity based on this.
Granted, there are many different types of wrongs done to othersas well as many different motives involvedbut what concerns us here are the essential factors. The States present tactics of retribution only continue the process of criminality. Such tactics as unproductive imprisonment reflect the common theme that criminals are to be feared and/or hatedbut not understood. Understanding is part of the solution, because it allows one to seek justice as well as psychological remedies for the development of individuals (i.e., self-development) whose constant or occasional goal is to feed off and prey on other people.
The criminals psychologyinvolving as it does a manipulating or conniving mentalityrests on the false premise that others must be fooled, used, or beaten in the game of life. For a person who has mostly ignored focus on the meaning of reality and the self, his or her life is not understood fully. It may be perceived as unfair, but it mostly is a life in which values have not been sincerely and logically chosen (and earned). Life, both consciously and subconsciously, becomes basically a world of otherstheir actions, their values, their thoughts, and their feelingstheir expectations and rejections especially.
Criminal mentalities often expect others to hate them, to ridicule themin sum, to disrespect themfor this is part of the game. This is often how they try to justify their acts as being responses to a world of fools and hostility. So, many are constantly devising new ways to take advantage of others. This is part of the mind of a criminal, a habitual mode of thinking about how to beat others or the system, resulting in conscious choices to do wrong.93
The pattern of criminality is usually the outcome of a developmental sequence. It begins with discouraged childhood attempts at self-confidence and self-respect (and therefore respect for others). Discouragement typically is accompanied by adult hypocrisy and double standards, adult incongruence between beliefs and behavior and thoughts and feelings, and unacknowledged adult fear and pain. This is a world where emotions and many ideas are not clearly identified and understood. Some children, rather than fully conforming to this world and the system, decide to take their own twisted form of revenge. They choose to express their ravaged self-esteem in mischievous or destructive ways.
Once an adversarial attitude has formed from innumerable daily choicesin the midst of various undignified and disrespectful familial, school, and cultural encountersthe thought of reformulating ones views of self and others becomes tantamount to giving the enemy ones unconditional surrender. Most may rationalize that being a good boy or good girl (actually respectful and civil) must entail being exploited by others. Seemingly no doors are open for change. So, finding ways to cheat, control, and fool others (all the while fooling oneself about the nature of the game) becomes the norm.
People can effect change only by understanding these attitudes. They are derived from an ethical and political culture that was not designed for autonomous, rational functioning. The present culture is neither structured nor intended to remedy the current levels of crimes. Nor is it able to effectively deal with the future droves of young, predatory individuals characterized as being impulsive and remorselesswho care little for either person or property (starting with their own).
Instituting more policies of hurting people because they have done wrong does not build respect. Nor does imprisoning them for years and years in a climate that is subhuman and nonproductive. Nor does allowing them to get by with what they have done, out of feelings of sympathy, past history of abuse, and so on. Pain inflicted by others ordinarily fosters resentment and contemptuous submission. Genuine remorse comes from the realization that one has lapsed in self-responsibility and independent judgment. Naturally these latter qualities are very difficult to foster with our societys current types of punishment. A system of restitution, however, would be a large step in the right direction.
Capitalism would help minimize crime by enforcing individual rights, which involves political/economic remedies that offer new and invigorating incentives, both psychological and existential, to be a respectful human being (which will be covered in many of the following sections). In a free society people would soon realize that anything acquired or wished for without effort and achievement (or without being deserving of it) is basically valueless. There is certainly no satisfaction in not accomplishing something productive and not pursuing ones aspirations in an appropriate manner.
A psychological shift would thus take place, and people would dispense with their antagonisms. Most who took wrongful actions would be treated as human beings capable of understanding the moral and legal consequences, rather than as unreasoning animals that must be put in cages. Justice can only be strengthened by being just.99
In a free society, torts would be seen as a serious way to hinder opportunities for achieving genuine values, which would be within every capable persons reach. Objective law would encourage the best ideas and behavior within every person and discourage the worst. To be more precise, bad ideas and action would no longer have the widespread appeal that they do in todays culture. People would finally realize that trying to obtain the unearned and the undeserved benefits no one.
With capitalism, the services provided by the military would also be transformed dramatically. Because a statist system would no longer exist, a wasteful military machine could not stay in operation. Further, the United States of America would no longer have a centralized representative body in Washington D.C. that supposedly speaks for everyone. As a consequence, the U.S. would not be a collective target of resentment that meddles in numerous foreign affairs. Those who disagree with its extensive policies throughout the world would no longer face the ever-present threat of terrorism against anything and anyone American.
A capitalistic society would most likely be seen for what it is: a group of individuals living in a certain geographic area who now realize (among other things) that the only moral way to deal with each other is through free and unobstructed exchange of values. All relations between Americans and people in other parts of the world would be at their own discretion. Any military or humanitarian aid could only be funded and carried out by private methods and represented solely in their interests. No one else would be involved or implicated in such matters.
In addition, the U.S. government could no longer sustain numerous double standards in its dealings with other countries and their leaders (both democratic and totalitarian). The terrible inconsistencies abound. Countries in the Middle East are just one example. Many of our governments supposed allies perpetrate the same atrocious acts as our supposed enemies. Usually the only difference is the particular countrys political, military, or economic suitability to U.S. interests at the time. There are leaders who gain leadership with the help of the U.S. government, and later become ruthless enemies. There are favored nations where political dissidents are tortured and thrown into prison to waste away for years, just for voicing opinions against the State. There are friendly countries where persons are dragged to their deaths by firing squad or beheading, without the faintest hint of a trial, let alone a fair one. Meanwhile, diplomats have their amicable and highly publicized meetings and make deals that impoverish and betray the lives of millions. Unfortunately, the influential reporting press sometimes uses a selective filter concerning the real truths in these matters.
Because no nation fully recognizes the rights of its own citizens (let alone the rights of people elsewhere), most U.S. foreign policy actions are very hard to justify. As an example of present foreign policy, we have the U.S. governments dealings with Iraq. The United States (via the United Nations) has engaged in an economic embargo there since the Persian Gulf War, cutting off shipments of certain goods. The more astute of the news media have revealed that these measures only hurt and kill innocent people (an estimated 500,000 children have died in Iraq). Embargoes also strengthen the resolve of the citizens in the affected country against a perceivably evil enemy. While the powerless citizens starve and barely subsist, those in political power distribute propaganda and funnel the few goods to themselves. The politically powerful are much less affected by the sanctions. (We have also witnessed this in Castros Cuba.)
Yet the head of UN sanctions and now U.S. Secretary of State, Madeleine Albright, stated in an interview (with 60 Minutes, aired May 12, 1996) that the casualties in Iraq on account of the sanctions have been worth itthat is, so long as the embargoes ensure that U.S. troops will never have to fight there again. This of course overlooks the real reasons for the Gulf War. It had little to do with the economic (and hence military) strength of the nation of Iraq (which is ostensibly what the embargoes target).
As in most wars, the Persian Gulf War was primarily about tainted politics. The U.S. government simply failed to take the proper actions that would have prevented the invasion of Kuwait and the ensuing disasters. While the U.S. courted his favor initially (against Iran), it now considers Saddam Hussein a despicable enemy. Nonetheless, he remains as viable as ever, irrespective of how many bombs our military forces drop on his country.
With capitalism, the political systems of other countries would be in the light of logic. Most would be seen as systems of human impoverishment and degradation. No country could hide the true nature of its practices, due to the newly-formed shining example of liberty. Intellectual revolution throughout the world would be an almost certain course of events. And, free people seeking to institute absolute individual rights everywhere would be justified in helping to overthrow coercive governments (where it is requested).
Considering the military changes under capitalism, what if the new USA were targeted for attack by countries who saw a capitalistic society as detrimental to the maintenance of their societies of coercion? How could a capitalistic society adequately defend itself if it were attacked, since a huge, exorbitant military might have trouble existing through private payment?
In an age of so much ethical and political confusion, we need to keep in mind that only the moral is the practical. Since faith in the collective governmental monopoly is simply unfounded, trust must be developed in private individuals. Undoubtedly, capitalism would consist of complex networks of cities and other communities throughout the entire privately-owned geographic area. These places of businesses, corporations, and residences would consequently have a vital interest in protecting their personal and economic environmentin maintaining their ability to trade and make profits and have a joyful life.
Those living in a free market would necessarily ensure that any possible threats to their livelihood could be defended against and destroyed in an extremely swift fashion. Contrary to statist propaganda, war does not create wealth and rejuvenate an economy. No values are created by such destruction.
The money formerly expropriated from people through taxation and inefficiently and unproductively utilized by the military could be used privately in the most appropriate and cost-effective manners. Private military organizations would cater to the particular needs of people in cities and the areas between them (as well as in other countries).
The ingenuity and competence of the people in a capitalistic society should never be underestimated. Considering what the United States has achieved militarily with an unjust political system, one can only imagine the effectiveness of an ad hoc military united by the premise of human freedom and individualism. Accordingly, any kind of violent opposition against this premise would be short-lived, and people could move on to the immeasurably preferable matters of achieving values.
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