Isn’t the Law Already In Our Hands?

"When the aggression by a territorial state is only downward, towards its own population, we call this condition ‘peace’." ~ Murray Rothbard, from "Rothbard on the Warfare State"

As I completed a 6-mile run the other day, an oft-repeated phrase danced around in my head, taunting me. I was pondering libertarian law generally, and concepts like anarchy, self-defense, the NAP (non-aggression principle) specifically, along with what each of these concepts might mean to a society. Simultaneously, I also pondered the plight of the two young men shot and killed by police in NYC some time ago.

In fact, the relatively recent (on-going?) rash of police-involved injuries and deaths seemed to fill my thoughts, from the 92-year-old who was shot to death by police during a drug raid gone bad, to the student who was severely tazed for not showing his ID. Certainly, no review of recent law enforcement or judicial lawlessness would be complete without at least a passing glance at the similarities between the Duke non-rape non-sexual assault case and the Scottsboro boys case from long ago. And who can forget the case of Genarlow Wilson, the teenager currently serving a 10-year sentence for consensual sex, due almost totally to an ambitious (and let’s be honest, psychotic) prosecutor. Ten years in jail? Are you kidding me?

Against this backdrop, I found myself trying to reconcile that old legal saw, "No one can take the law into his own hands." This logic is cited on TV legal dramas whenever someone who has been harmed contemplates taking direct revenge upon those who are known to have caused their pain. Often this phrase is uttered as a salve to soothe retribution-soaked homicidal urges.

What I wondered that day and what I wonder now is this: Isn’t the law already in our hands? Are we not somewhat to blame when prosecutors – such as (former) Durham District Attorney Michael Nifong, late of the Duke Non-Crime Hoax, or Georgia Attorney General Thurbert Baker, who recently vowed to fight a judge’s ruling to have Wilson released – impose their heinous and power-mad will upon innocent victims? If the law is not in our hands, would we not be better off – as I discuss in my essay on the crime in Gotham City – if it were? Either we should take it back or it’s our fault when it goes awry – plain and simple.

The Displacement of Responsibility

Fellow LRC contributor Stefan Molyneux is rather fond of telling statists, "You want me dead!" Part of his reason for saying this is to shock them, but part of it is also directly juxtaposed against the reality of a coercive state. People who’ve yet to drink of the libertarian Kool-Aid typically support some (and sometimes quite a few) government programs. Which ones they support just depend upon which animal-shaped idol their political party marches under.

Liberals generally support social programs – welfare for example. Conservatives generally support imperialist programs – worldwide military intervention for example. Both sides typically support entitlement programs – social security for example. The fact that all of these programs rest on the back of direct aggression – in the form of theft – from everyone, is apparently obscured from the view of either side. Then again, maybe they just don’t care, but that is probably another debate.

If you approach anyone claiming membership in either of these groups with Stef’s pet phrase, they would recoil in horror. Of course that is not true! However, if any one of us stops paying taxes to support any or all those programs, eventually, men with guns are going to get involved. At some later point, we could end up in prison. (If you don’t think this is true, talk to Wesley Snipes, Irwin Schiff, Larken Rose, et al.) While going to prison might not exactly be death, it is close enough for me. If I now rephrase my objection to the statist, he would say, "I didn’t put you in jail! You broke the law; it’s your own fault." To this I would simply say, "So you wanted me dead, punished, beaten, raped, or whatever; you just didn’t have the guts to do it yourself." Aye, there’s the rub.

Those who support the coercive state seem to think that when the hammer falls, it wasn’t their fault. This is simply not true. The law is already in our hands.

Some who witness the goings on of recent legal cinema, including the Martha Stewart trial, the Ken Lay trial, the Dick Simkanin trial, and countless others are likely to have some feeling that "justice was done" because they believe that the judicial system is set up to preclude mistakes. What if it’s not? What if the same driving forces that make the coercive state such a great breeding ground for evil also interact with the supposed blindness of justice? As the law is used more and more as a first-order tool of social engineering versus a last-order tool of moral retribution do we not inevitably edge closer and closer to the abyss of a police state? G. Edward Griffin says it wonderfully in his Creed of Freedom:

"If government is powerful enough to give us everything we want, it is also powerful enough to take from us everything we have."

Indeed. Someone once said that we may not get all the government we want, but we should be happy we don’t get all the government we pay for. I tend to agree, but that is why the law must remain in our hands. (Now I’m an anarchist, so I want even less government than Mr. Griffin, but I liked his words anyway.)

What’s Against the Law, and Who Gets to Decide?

Before one can begin even the most cursory analysis of justice, one needs to understand the only two sources for crimes available. A crime can be malum in se – wrong by its very nature, or malum prohibitum – wrong because it has been prohibited by statute. We seem to live in a time when more and more people – seemingly drunk off the overcooked pot liquor of learned stupidity – either don’t know which is which or worse yet, don’t care. Punishment is what the law is for! Justice is just details!

Let me relate an example from my own life, before the logic of truth overwhelmed me. Quite a few years back the Rochester P.D. ran a "sting" in the inner city. They set up phony drug buys for people looking to pick up a little weed for the weekend. They caught a bunch of suburbanites in the operation. As I understand it, several of the folks arrested actually had their kids strapped in the back seats of their cars, on their way home after picking their off-spring up from Catholic schools in the city. (I kid you not. You cannot make this stuff up.) So anyway, here these folks were, pinched for ostensibly buying drugs, and about to be charged with a rather severe crime. What happened? Nothing. They were released.

What? The outrage! This is a clear example of the system protecting its own. If these folks had been black, well, you know… Forget it. (I actually had some of those types of thoughts back when this incident happened. Good thing I decided to read a little more.) They were released for one simple reason: they didn’t break the law. As part of the sting, the undercover cops sold their "marks" oregano or some other herb instead of, well, real "herb." (Does anyone still call it that?) It’s not against the law to purchase a legal substance, in this case a garden herb, from a police officer. End of story.

So what’s the point of this little anecdote? Just one simple question provides the context: What differentiates oregano from marijuana? If I decide I want to smoke some ragweed tomorrow, will anyone care? What makes the purchase of crack so bad when I could purchase powdered sugar from an undercover cop all day long? Nothing, except the effect it has on the user. Yet we have a prison system filled to the brim with people who have done nothing but purchase an "illegal" drug, often for their own use or sell an illegal drug to people who sought them out to buy it. Why have we let it come to this? I thought the law was in our hands?

Here’s another anecdote from my own life. I served on a jury in a criminal case about three (3) years ago. By the way, I know jury duty gets a bad rap, but you owe it to yourself and your fellow citizens to serve if you get the chance. Nothing can illustrate more about how "the system" works than actually seeing it in action. (In case you’re wondering, watching Boston Legal does not accomplish the same thing!) The case we heard involved an assault, but that portion of the case is largely irrelevant to my story.

What is relevant is that the defendant had a previous drug conviction. He had sold (or bought) some coke to (or from) an undercover policeman. This gave him a "first strike" under the mandatory sentencing guidelines in NY. Because of this, had we convicted him of the relatively "tame" assault charge, he would have gotten 25 years. Twenty-five years? How in hell can anyone call that kind of sentencing justice? Furthermore, how can a judge render justice by looking at some chart? The law is (supposed to be) in his hands.

I should mention that we had no idea of the sentencing guidelines at the time. We rendered our verdict without that knowledge. The judge told us what would have happened in the "wrap-up" after the trial. In all honesty, I was determined to not send a man to jail for a weak reason even without that prior knowledge, but if we had convicted him and learned about this mandatory sentencing after the fact, I would have been horribly disappointed. As it turned out, I was even happier with our decision. Thank goodness the law was in our hands.

No essay on the law could survive without at least one mention of Paris Hilton. (Consider this essay covered!) As I troll the Internet (yes, I’ve too much time on my hands) I notice that by and large the hue and cry is relatively uniform: "Put that bimbo in jail!" "She broke the law – twice – and she deserves her time." While no one could dispute that she did, in fact, break some rules, one would also have to admit that she committed no property violation. She infringed upon no one else’s rights. As such, what she committed was a malum prohibitum crime, which, as I already said, is simply a transgression against some State edict. Certainly she was incredibly irresponsible, and certainly I am tired of her antics, but those are not crimes. Yet. As for me, despite her bimboriffic skankosity, I still say "Free Paris!" (And while we’re at it, "Free Genarlow!") I wish the law were in my hands!

One of the most heinous areas where "crime" has been subverted for evil is in the federal realm. The State has taken an entire area of free enterprise – the securities area – and simply "made up" – created out of thin air – a whole category of crimes, specifically for the purpose of dispensing justice as they see fit, regardless of the actual commission of a property violation. For a better understanding of this area, allow me to quote fellow LRC contributor Bill Anderson:

The thing that people don't understand is that the government prosecuted Ken Lay and Jeff Skilling on "securities fraud," which took acts that were legal (if not questionable) and bundled them into a crime. Candice E. Jackson and I refer to such "crimes" as "derivative crimes," in which the government takes a number of activities and then bundles them into an imaginary crime, yet it is considered a crime all the same.

For example, under RICO, one is charged with "racketeering." Now, no one "racketeers" someone else, as "racketeering" is an imaginary crime. The "crime" of "racketeering" actually is a compilation of other actions that the government puts together the same way that finance people put financial "derivatives" together.

Because of the broad and loose way that federal criminal codes are written, just about any CEO can be charged with securities fraud. Furthermore, let's face it, the Enron principals were prosecuted because the company got over-extended and went belly-up. The government criminalized business failures.

My point always has been that this case belonged in civil, not criminal court. However, in this day of the prosecutor, we see that people want others to go to prison, whether they committed a crime or not. Rudy Giuliani started this mess, and we can be assured that the government is always looking to put new people into the crowbar motel.

Indeed. The State decides, a priori, whom they want to make an example of, and then proceeds in whatever way they can to get the result they wish. Not to put too fine a point on it, but that’s not close to justice. If we know this, then the law could already be in our hands, we just aren’t acting like it.

Conclusion

In order to rule, those in power, even in a pseudo-socialist democracy like Amerika must establish legitimacy for what they propose to do. For all their power and all the overwhelming monopoly of force the state has, public opinion is a requirement for their continued success in ruling us. As Hoppe states in, "The Origin and Nature of International Conflict," what constrains the conduct of state rulers is public opinion.

So what should we do? Withhold your support, and let your opinion be known!

Don’t get out of jury duty. There are few endeavors of which the "average citizen" can take part that matter more to the application of justice than serving on a jury. When you serve, realize that you get to decide what is wrong and right, no matter what the judge says. Don’t send anyone to jail for some B.S. that shouldn’t even be against the law!

Let them know how you feel. I said in a previous essay that I had written my first and last letter to my congressman. I stand by that admission, but by the same token I have to admit that nothing can replace the feeling of contentment I got from letting my putz of a congressmen know that I knew he was chock full of dog poop.

Take responsibility for your own actions and demand the same of everyone else. If you go to a car dealership and buy a lemon, it’s your responsibility. The market penalizes loser car dealerships way more than a law ever will. More importantly, a law can’t protect you from your own stupidity without making you even more stupid in exchange.

Raise your voice. I’d be the first to admit that essayists like me are in no real danger here on "the internets." We can say pretty much whatever we please and even in this post 9/11 Amerika, we are relatively safe. That’s all the better reason to take advantage of it! Feel free to join me.

Fill your mind. One of the completely unexpected benefits I experience from writing these essays is I end up absorbing a lot more information than I generate. I read a lot of fantastic information both as research and in response to suggestions from respondents. I can assure you that what I’ve learned from writing these essays far exceeds what I’ve conveyed within them. (Yes, I know that’s obvious, but let’s just keep it between us.)

I said all of that to say just this: The law is already in our hands.

I, for one, think it’s about time we started acting like it.

June 13, 2007

Wilt Alston [send him mail] lives in Rochester, NY, with his wife and three children. When he’s not training for a marathon or furthering his part-time study of libertarian philosophy, he works as a principal research scientist in transportation safety, focusing primarily on the safety of subway and freight train control systems.

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