American Justice?

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This is an excerpt from Political Class Dismissed.

Let’s begin at the beginning by pointing out a fact that is so obvious that it is almost entirely forgotten. It is taken for granted that, for the sake of peace, justice and order, the courts must have a monopoly on judicial power within the boundaries of their jurisdiction. Yet, the ability of today’s courts to achieve any of these values with the monopoly power they possess is subject to serious doubt. Even if justice implies a court system with the monopoly power to do justice, the converse is not true. The mere existence of monopoly judicial power does not imply that it will be used justly. Whenever that monopoly power becomes unhinged from true justice, as it did, for example, in Stalin’s Soviet Union or Hitler’s Germany, that monopoly judicial power thereby becomes a great evil. One suffering under Hitler’s or Stalin’s u201Cjudicialu201D edicts would have wished to have recourse to some judicial competition, to say the least.

Order is a term frequently used but rarely defined. The concept of order is substantially similar to the concept of peace. For example, when people use the term civil disorder, they are usually referring to riots and other forms of widespread acts of violence against persons or property. In another sense, order involves not merely peace, but the provision of some assurance that peace will continue and that disputes will be amicably resolved. However, what people want is not merely some reasonable assurance that disputes will be resolved, but that they will be resolved with at least a rough approximation to justice: the correct application of the right principles to the reasonably known facts. While the state in all its forms, even dictatorship, provides a means to resolve disputes, its capacity to resolve them justly is subject to serious dispute. Why should we think the state, even a democratic state, will resolve disputes justly?

An immediate and intractable problem arises. It is claimed that a state with a monopoly on dispute resolution powers is the very prerequisite of a civilized justice system. So such power is bestowed upon the state or seized by it. Now we have a situation in which, if one wants dispute resolution services, one must go to the state. What are the ramifications of this monopoly? Like any monopolist, the state will tend to charge more for its services than private arbitrators would. Moreover, since its revenue is guaranteed, and the courts have little incentive to attract or please its u201Ccustomers,u201D government courts have little incentive to incur the costs of producing justice: the intellectual, moral and physical effort required to achieve true justice. Thus, overall and in general, state-provided justice will tend to be expensive, time-consuming, and of relatively poor quality. There is the story of the local judge who, confronted with having to wade through hundreds of pages of summary judgment motion papers, instead lazily told the lawyers, u201CThere must be an issue of fact in there somewhere. Motion denied.u201D

The biggest problem, however, with government courts arises from the unusual nature of their product. Sure, a state monopoly car company would sell overpriced and poorly-made cars. A government monopoly over the law, however, is much worse. The product of the government courts is the definition of the legal rights and powers of all persons and institutions in society, including themselves and the government of which they are a part. Therein lies the problem. As Hans-Herman Hoppe argues:

u201CUnder the assumption of self-interest, every government will use this monopoly . . . to its own advantage. . . . Hence every government should be expected to have an inherent tendency towards growth.u201D [1]

Thus, government courts will tend to expand the rights and powers of the government, while shrinking the rights and powers of the citizenry. Individual Americans have only slightly more ability to halt this perpetual growth of the state than did their sad counterparts in Stalinist Russia or Nazi Germany, though, unlike them, we remain free to squawk about it, for the time being anyway. This theory is confirmed by history. The United States government has been growing steadily ever since 1776, with the reliable, continual and unsurprising endorsement of its own courts. Constitutions do not thwart this process since the courts themselves define what they mean. That is, the government resolves any dispute as to the extent of its own powers:

u201C[A]ny written limits that leave it to government to interpret its own powers are bound to be interpreted as sanctions for expanding and not binding those powers. In a profound sense, the idea of binding down power with the chains of a written constitution has proved to be a noble experiment that failed.u201D [2]

Thus, government courts, unconcerned about securing or satisfying customers, tend to be more concerned about looking after their own interests and the interests of their allies. They adopt, for example, elaborate and fairly inflexible rules of procedure, most of which seem designed to serve the needs of the court, not the litigants. Litigants are forced to hire expensive attorneys, usually specialists who know their way around in that particular court. Dispute resolution agencies which cannot monopolize business tend to adopt much simpler procedures. This banal example makes the larger point. Government courts, being monopolies, tend to serve their own interests, not those of the litigants, in all aspects of their work, from procedure to substantive decision-making. This lack of solicitude is the direct and inescapable result of the very monopoly powers we are told courts must have!

A further point: it is rarely remarked that government courts are subject to the same special interest group dynamic that plagues the other two branches of government. Most citizens want courts that mete out justice. Yet, a small group of people view the courts as a means to increase their wealth, power and prestige. Which group will tend to prevail over the other? We need only apply the concept of rational apathy that earlier led us to conclude that the fellow who wanted an easy job in a bureau would prevail over the citizen who wished to have lower taxes. That is, those who view courts as the means for securing high-paying, powerful and prestigious employment, or who regularly transact business in the courts — such as lawyers, large corporations, large institutions, and various legal special interest groups and political parties — have a far greater incentive to be involved in the process of selecting judges and determining court rules, policies and philosophies than the average citizen does. Thus, the courts will tend to reflect the views of the legal special interests rather than those of the general public.

Ideally, the courts should resolve disputes justly. Justice is not a meaningless abstraction; it can be defined. As I see it, justice is the resolution of disputes based on the application of the proper or correct legal principles to the knowable facts within a process that is speedy, cost-effective, and as simple as the circumstances permit. Most critical for our present purposes is the application of the correct legal principles. Will government monopoly courts tend to apply the correct principles of law consistent with justice? What gives government courts their cachet in the first place is not proof of their philosophic wisdom but, rather, the fact that they or their allies or predecessors have managed by political or military means to drive out the competition and establish a monopoly. It is not at all clear why the power to establish a monopoly of a good or service by means of political power or military force is proof of the ability of the monopolist to deliver a high quality product, in this case, justice. Quite the contrary. Justice and power are usually at odds. The whole point of justice is to restrain power. To rely on those adept at power politics to guarantee justice is, to paraphrase Oscar Wilde, to seek the triumph of hope over logic and experience.

If we define justice from a Lockean or Jeffersonian perspective as protection for the individual’s rights to life, liberty, and property, we may be skeptical about whether those who establish a court system by coercion, and seek to staff that system and thereby forcibly impose their legal principles on the entire country, will be at all solicitous of pacific Lockean or Jeffersonian legal principles. Governments tend to be founded and staffed not by apolitical or antipolitical libertarians or Jeffersonians but by power-hungry Hamiltonians who tend to have much more expansive plans for government beyond merely keeping the peace and recording property titles. Even if we assume that government monopoly courts were established with the best of intentions, like the other two branches of government, they quickly come under the control of the various special interests which seek to use the courts to unjustly advance their own welfare at the expense of others. For these reasons, in actual practice the courts have been absolutely hostile to Lockean/Jeffersonian/libertarian principles, as theory and common sense would have predicted. [3]

Turning to yet another problem with the justice system, we often evaluate its performance based on its ideals and rarely look at its actual performance. Because power corrupts, corruption, bribery, and favoritism regularly plague the state’s legal system. For example, in 1999, 580 people were convicted of u201Cofficial corruption, including thirty-two federal law enforcement agents.u201D [4] In 1998, 42 police officers in Cleveland were charged with conspiracy to distribute cocaine. [5] Other law enforcement agents accused of corruption that year included:

  • Three Detroit police officers who were charged with conspiring to rob approximately $1 million.
  • In Starr County, Texas, the sheriff, a justice of the peace, and five county jailers who were charged with bribery and conspiracy to commit bribery.

Nine current or former New Jersey police officers who were charged with racketeering involving protection of prostitution and illegal gambling. [6]

In January, 2002 a New York judge was arrested and charged with soliciting a $250,000 bribe. [7] In April of 2003, another New York judge was arrested with several others and charged with systematically fixing divorce and child custody cases. [8] Since all the parties to judicial corruption have a strong incentive to keep it a secret, is the known corruption merely the visible part of a giant iceberg?

In addition to overt corruption, there is a more sinister and largely invisible form of corruption that only close observers of the courts can discern. Judges in a democracy tend to be political animals. It matters not whether they are elected or appointed. The notion that appointed judges are apolitical is a fantasy entertained mainly by nave and self-appointed u201Ccourt reformers.u201D In truth, the politics involved in appointing judges is usually more covert and insidious than that involved in electing judges. The public rarely learns about why judges were appointed. Who pulled what strings? Who owed what to whom? Who will owe what to whom in the future? Even politically astute lawyers often do not know the answers to these questions.

The selection of elected judges to run for office is more transparent. They are generally lawyers associated with local political party organizations. They owe their loyalties to such organizations. However, they usually have at least some organic connection to the local community, else they would lack the support to be elected. Lawyers appointed to judgeships usually are more wedded to secretive elite circles. Is that why elites almost unanimously favor appointing judges? [9]

It has long been common knowledge that nominations for the elected position of state trial judge are often based on which candidates gave the largest contributions to the party. This fact is often cited by those who favor appointing judges. The partisans of appointing judges were surely deflated by the news that Governor Pataki recently appointed to the New York Court of Appeals a man who gave the Republican Party $219,000. [10]

It is a common belief that federal judges, who are appointed, are less political than state judges who are usually elected. However, every federal district judge in Buffalo started out as a politically-appointed United States Attorney or Assistant United States Attorney. Most had previously held or campaigned for state elective office. The local party chairmen are heavily involved in the selection of federal judges. The notion that judges who were themselves politicians, who are recommended by politicians (the party chairmen) to please their contributors, appointed by a politician (the President), and confirmed by still more politicians (the Senators), are or can be apolitical is one of the grand myths of American government. It is nonsense.

Whether judges are elected or appointed, they are all products of a political power structure. They therefore bring to the bench the general mindset of that power structure. They will tend to favor the interests of the power elite because of a similar outlook, loyalty, gratitude, or a desire for future appointments and other favors from the power brokers for themselves and their families and associates. Even federal judges, appointed u201Cduring good behavior,u201D [11] in effect, for life, tend to look out for the interests of the power structure whence they came. Perhaps from modest backgrounds, they are now accepted into elite circles. Having achieved judicial power, many become social climbers, seeking the acceptance and the numerous and subtle favors elite circles can now confer. While such judges may fairly adjudicate disputes between ordinary private persons, when such persons litigate against the state, or members of the power elite, they will tend to discreetly favor the elite. They are usually clever enough to disguise the favoritism.

Though my comments will probably cause consternation throughout the legal and judicial establishments, much of what I write was corroborated by one of New York State’s most distinguished jurists speaking at my father’s retirement dinner in 1991. He made a special point of noting that, in his decision-making process, my father had not been u201Cresult-oriented.u201D He was not like those judges who u201Cdid not have in mind the role they must play in administering justice.u201D That is, my father did not have a preconceived personal, political or philosophical axe to grind but sought out neutral justice in the cases before him. Yet, if this attitude was predominant in the courts, this jurist would not have considered it a notable virtue of my father’s career.

When a private person or entity has a dispute with the state itself, the dispute must be resolved by the state’s courts, else it ceases to be a state with the monopoly power to resolve disputes. We must, however, point out, in the spirit of the Emperor’s New Clothes, the long overlooked but obvious fact that such dispute resolution is a sham and mockery of justice. We are told that no one should be the judge of his own cause, yet the state, in disputes with its own citizens or subjects, is always the judge of its own cause. That this is not so because the state refers such disputes to its judicial branch is a silly and stupid argument. Similarly, I suppose, the next time I have a dispute with the United States I will insist that the dispute be resolved by an arbitrator selected by me.

In sum, the monopoly state provides no assurance that disputes will be resolved justly, merely that they will be resolved. Of course, all disputes at all times and all places are resolved one way or another. Yes, but at least the state does so without the use of force. This too is a myth, an illusion. The state resolves all its disputes by the use of force. Yes, but the force is so overwhelming that it does not have to be used, merely threatened. Even this is false. The police use force (beyond mere handcuffing) against half a million Americans each year. [12] In a typical year, 373 people are u201Cjustifiablyu201D killed by law enforcement officers. [13] Additionally, many innocent people and criminal suspects have been unjustifiably assaulted and/or killed by law enforcement agents.

A 1998 report by Human Rights Watch studied police behavior in 14 large American cities from 1995 through 1998. The report concluded:

Our investigation found that police brutality is persistent in all of these cities; that systems to deal with abuse have had similar failings in all the cities; and that, in each city examined, complainants face enormous barriers in seeking administrative punishment or criminal prosecution of officers who have committed human rights violations. Despite claims to the contrary from city officials where abuses have become scandals in the media, efforts to make meaningful reforms have fallen short. [14]

Yes, but at least only the state uses force — the disputants do not. Here, we are pretty far from the notion that the state does not use force to resolve disputes. But even here the state comes up short. Many law enforcement agents themselves are killed or assaulted. Each year, about 135 law enforcement officers are killed in the line of duty in the United States. Another 50,000 police officers are assaulted. Many judges, litigants, jurors, lawyers and witnesses involved in criminal and civil litigation have been murdered, assaulted or threatened by disgruntled parties.

Many episodes of social violence have resulted from a perception that government courts or law enforcement officers have not resolved disputes fairly or protected citizens adequately. In 1992, there was a major riot in Los Angeles sparked by dissatisfaction with an acquittal in a criminal trial. [15] The riot resulted in 54 persons killed, 2,383 injured, 13,212 arrests, and 11,113 fires. [16] A similar riot occurred in Liberty City, Florida, in 1980 after a jury acquitted four police officers charged with homicide.

The state’s abject failure to resolve conflicts without the use of force by itself, by litigants and by their sympathizers in the community is rarely acknowledged.

Thus, the state does not assure that disputes will be resolved justly and without using force. Many scholars define u201Cwaru201D as a conflict resulting in at least 1,000 combat deaths. By that measure, the United States justice system, the world’s most highly-touted, has a u201Cwaru201D every two years! All told, the number of people killed or injured as a result of the state’s enforcement of its laws is truly enormous. [17] This is far from the civilized, peaceful and orderly system of schoolboy legend.

The state itself exacerbates and stimulates conflict. Its legal system does this directly and its policies do this indirectly. As Hans-Hermann Hoppe and others have argued, the state’s policies, based as they are on coercion and confiscation, create a moral atmosphere which encourages the development of aggressive personalities. [18] Further, the state’s legal system is so complex that few understand it. This reduces respect for the law, diminishes its moral force, makes conflicts more likely and makes them more difficult to resolve. Inordinate complexity also allows judges to mask politically-motivated decisions in a dense fog of arcane legal reasoning. In most areas of human knowledge, increasing complexity is a sign of progress, an indication that greater information has been acquired. Not so with the law. The law’s crucial function is to guide people in their interactions with other people; to reduce disputes and misunderstandings; and to make possible the expeditious and just resolution of disputes that do arise. Further, since the ultimate foundation of respect for the law is community sentiment, the essential principles of law must be readily understood by most people. The modern statist legal system has failed in this critical function. No one fully understands it, not even the most brilliant lawyers and judges. Legal specialists do not even grasp all the intricacies of their own fields.

Thus, today’s court system consistently fails to deliver on its promise to provide peace, order and justice in exchange for the monopoly power it has been given. It resolves disputes slowly and expensively. Its legal principles are often inscrutable, its procedures arcane. Like the legislative and executive branches, it panders to special interests. [19] The courts have consistently put their stamp of approval on the ever-increasing growth of government and the resulting shrinkage of our liberties.

Much of today’s legal system consists of arbitrary rules arbitrarily applied. This is largely the result of the abandonment of the simple axioms of Lockean justice that animated the American Revolution: self-ownership and ownership of justly acquired property. Over the years, these axioms of justice were jettisoned for the wonderful, wacky world of virtually unlimited legislation by political hacks, endorsed by the judges they install and best described by one-time Buffalo newspaperman Mark Twain: u201CNo man’s life, liberty or property are safe while the legislature is in session.u201D Once you deny that individuals own themselves and their property, no rational or moral stopping point to government action can be conjured. The whim of the legislator and judge controls. That was not the original idea.

The founders were extraordinarily well-schooled in history and political philosophy. Jefferson, for example, read the classics — Homer, Plato, Cicero, and Virgil — in the original Greek and Latin. Jefferson and his colleagues understood what we, even after witnessing the slaughterhouse of the twentieth century, have yet to learn: that history shows that government officials abuse their power for their own interests and that, to avoid the endless tyrannies of the past, they had to construct a political system which diffused power — not only among branches and levels of government, but between government and the people.

For instance, Jefferson believed it was of critical importance that the federal government and its courts not be the final judge of the extent of their own powers. However, as Woodrow Wilson correctly observed, u201CThe War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.u201D [20] Another Jeffersonian mechanism for dispersal of political power was the right to trial by juries that decide both the fact and the law (6th and 7th Amendments). Over time, however, the right of juries to decide on the law itself — jury nullification — particularly in cases where application of the letter of the law would produce rank injustice, was eviscerated by judges who thought nothing of overriding the clearly expressed views of attorney-founders Jefferson, Hamilton, Adams and John Jay. Thus, today’s courts are not your founders’ courts. The republican founders’ ingenious diffusion of power has been defused. [21]

My brother of the bar Jefferson, unlike today’s often timorous and obsequious lawyers, did not hesitate to criticize the federal judiciary:

We have made them independent of the kingdom itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.

In truth, man is not made to be trusted for life if secured against all liability to account.

From the citadel of the law, they can turn their guns on those they were meant to defend, and control and fashion their proceedings to their own will.

It has long been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary — an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

Politics is seamless; it pays no attention to the civics book delineation of three separate and independent branches of government. Politicians use the courts for patronage and power. Judges too often reciprocate by giving the connected and the powerful favored treatment and by treating political u201Ctroublemakersu201D harshly. This favoritism in turn strengthens the machine and allows it to fend off its enemies. In the battle to take your town back from the power elite, don’t expect any help from the legal command posts of society.

This discussion of judicial politics is admittedly disturbing. If I am right, judicial politics is merely a subset of politics per se, albeit a form of politics whose machinations are subtle and secretive. As we have seen, politics closely follows the Oppenheimer-Nock-Rothbard model: politics is the accumulation of wealth and power by the undeserving through non-economic means. Again, if I am right, this discussion casts grave doubt on the long-standing claims by political scientists, legal philosophers and judges themselves, that, given a monopoly on the provision of dispute resolution services, the state can and will provide justice for all. As we have seen, not even the prestigious federal courts are immune from self-serving and heavy-handed politics and from flouting their own highest legal principles.

[1] Democracy: The God That Failed, Transaction Publishers: New Brunswick, 2001), p. 15.

[2] Murray Rothbard, For a New Liberty, (Collier Books: New York, rev. ed. 1978), p. 67.

[3] See, Henry Mark Holzer, Sweet Land of Liberty? (Costa Mesa, CA: The Common Sense Press, Inc., 1983).

[4] Sourcebook of Criminal Justice Statistics, 2000, pp. 411-412.

[5] FBI Press Release, Jan. 14, 1998.

[6] Id.

[7] New York Post, Jan. 26, 2002.

[8] New York Times, April 25, 2003.

[9] See, the Buffalo News, Sept. 26, 2003 (editorial).

[10] u201CLocal judge bypassed for state highest court,u201D Buffalo News, Nov. 5, 2003.

[11] U. S. Constitution, Article III, Section 1.

[12] u201CUse of Force by Police: Overview of National and Local Datau201D (National Institute of Justice, 1999), p. 5.

[13] u201CPolicing and Homicide, 1976-98: Justifiable Homicide of Felons by Police and Murder of Police by Felons,u201D Bureau of Justice Statistics (2001).

[14] u201CShielded from Justice: Police Brutality and Accountability in the United States,u201D 07/98.

[15] See Chapter 12 — u201COur Urban Policies are a Real Riot.u201D

[16] R. Peters, u201CCombat in Cities: The LA Riots and Operation Rio,u201D July 1996, Foreign Military Studies Office.

[17] We often forget the costs of the initial war that created the state in the first place, as well as the costs of the state’s constant preparedness to ward off enemies foreign and domestic to keep its grip on power.

[18] A Theory of Socialism and Capitalism (Kluwer 1989).

[19] If you read or hear about people attacking my analysis, they will most likely be members of legal special interest groups that benefit from the current judicial regime.

[20] Constitutional Government in the United States, p. 178.

[21] See, J. Ostrowski, u201CThe Rise and Fall of Jury Nullification,u201D 15 Journal of Libertarian Studies 89 (Spring 2001).

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website.

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