Dec
24
Justice is justice, whether provided by the govt, or private entities.
In any society, individuals will have disputes. Most of these disputes are settled between the arguing parties with mutual consent while some of the serious contentious issues demand a proper methodical way for agreement or solution.
And that methodical way is to induce a dispassionate or impartial third party judge for the solution of the argument.
In Panchayat Raj, these judges are appointed by a democratic method and that again represents a centralized system, which functions as Majority rules over minority. There is no requisite qualification required to be chosen as Panch of a village except the majority should vote for the contestant in Panchayat elections.
In such cases, one or both parties in a Panchayat court case may strongly object to the judge and/or jury who will decide the issue because they never voted or chose them.
However, Panchayat Raj, just like any State court system abandons the freedom of the parties to deny the judges/jury. If a party (or both) involved in the dispute doesn’t agree with the democratically elected judge/jury, they may go for higher courts, but in that case too, they possess no right of freedom to agree upon the third party acting as the judge.
In a Private judiciary system though, the Judge/jury can entertain the case only if and when both parties submit to the “jurisdiction” of the judge.
A very similar system of Private Judicial System is being telecasted on Star TV India as “Aaap ki Kachehri” hosted by the well-known Magsaysay award winner super-cop Dr. Kiran Bedi.
Something which is real, which is true but I salute to those who come to my show. And not just to benefit themselves but others too. I thank those people who dare to come and who come for a resolution, not to show their faces on TV,” said Dr Bedi.
Dr Bedi said that she plays the independent third party in each case, dissecting it at all levels without any prejudice. “It’s not to satisfy both parties, but to judge and resolve the issue,” she said.
Basically, it is a live example of Private Judiciary system. The system provides full freedom to both the parties involved in a dispute to decide either to accept Dr Kiran Bedi as a judge or not to and thus, it represents the Free Market system of social jurisdiction.
The NGO (Non-Governmental organization) of Kiran Bedi is already working as a third party negotiator/judge/jury for dissolving the social disputes of the interested parties, and even the Governmental courts of India recognizes the working of Private Judiciary system run by the NGO
Kiran Bedi’s NGO right in issuing summons: court
The success of the realty show of Kiran Bedi depends on the TRP the programme will gain, but her NGO is already a working success promoting the private judge system throughout the country, and hence the idea of liberty.
It actually is a better and further liberated system than the panchayat raj because it directly provides the freedom for the parties involved in a dispute to choose the third party judge/jury voluntarily.
It is a common belief that in the absence of government, since people are biased in their own favour, they are unfit judges over themselves. Accordingly, the government must act as the arbiter; otherwise, violence would ensue.
Well this is true that often third party judges are needed to solve the disputes, but there is no reason to assume that only Government officials or democratically elected politician or Panch can be the potential judge. In fact, more than a panch or a government official, the potent judge in a dispute can be that person/s with whom both parties involved in the dispute agrees with to accept as the third party arbiter.
There are many advantages of such Private Judge system but the major objection to such system is that there would not be one uniform set of laws applicable to everyone.
Same is the case with panchyat raj.
So, does it prove to be bane? Actually it provides a freedom for the parties involved in the dispute to decide their own penalties or punishment on a mutually agreed manner freely.
Another common objection is that the rich could purchase rulings in a private court system.
In fact, it is quite common in Panchayat system, as the rich may manipulate the elections and be the panch repeatedly. In addition, the rampant corruption in government courts and bribery cases of the judges proves that the static democratically elected judge system or the officially selected government judge system are much prone to the objection of rich purchasing and manipulating the law.
Yet in the case of Open Market private Judiciary system, future disputants could avoid the third party arbiters/judges/jury accused of accepting the bribes in the past.
It is not possible in the government court system, because under the Government system the only recourse against a corrupt judge is to hope that the voters remember (and care) and vote him or her out, or that the politicians appoint someone else.
The only drawback which can be staged against the private Judge System is, in some disputes an expert judge may be required.
As for the example of Dr Kiran Bedi’s NGO, the other active members of her NGO can handle some of the simple common disputes, while issues that are more contentious may demand her own self or further better and expert judge to arbiter.
Over time, the free market would develop and provide institutional refinements of this basic service providing more efficient and objective arbiters.
At present, the NGO of Kiran Bedi is providing free-services or minimal charges.
Yet, considering the large number of unheard and ignored disputes, it can be said that there is the burgeoning arbitration industry. So there is a possibility that if viable situations are provided, there may erupt a competitive market ensuring better, faster and sound private judicial service system, and the natural competition of the market forces will not only make the judiciary system faster, efficient, trustworthy and easy, but also, it will provide a system of dispute solutions at cheaper charges.
Just as millions of people, opt for market-produced bottled mineral-water, despite the “subsidized” government supplied water, so too do millions of people resolve their disputes through private arbitration already, and with the emergence of Dr. Kiran Bedi’s NGO and her Programme at Star TV India, I can say that prospects of Private Judge and arbiters system are very bright.
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1 views21 Responses to “The Prospects of Private Judicial System”
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Arvind Says:
December 25th, 2008 at 11:10 amThere is something troubling about what you say. If you are looking for a justice system to which you want to surrender, it doesn’t matter whether it is privately run or government run. If you are okay with anarchy, you should be okay with vigilante justice and riots. Without either approving or disapproving these acts, but merely as a person making observations, let me point out that India is a country where the cops kill Naxalites in encounters precisely because the justice system is corrupt and endangers the lives of cops. I hope you won’t tell me stuff like “innocent until proven guilty” because words like those imply blind faith in “due process of law” which is a euphemism for “behavior of the government.” A private justice system will be no better unless they fear retribution. In that sense, a lynch mob is a good deterrent and acts as a justice system by itself although there may be an error margin in who gets punished just as there is an error margin in who gets punished by the government run justice system. e.g.: When Muslims firebombed the train in Godhra, there were retaliatory riots.
Without meaning to pour cold water on this excellent blog, I would like to state an observation I’ve made over the years. People with your point of view get wise over the years realize that their discussions remain just that - discussions. They then stop these discussions and start focusing their energies on highlighting the violent ideologies of this world - Christianity, Islam and Communism without bothering about the details of the negatives of state control. In a way, that makes sense. Socialism is after all a diluted version of Communism. And why bother with intricate explanations that preach to the choir?
I wonder how long this blog will last in the current state before it focuses on the three violent ideologies.
sd Says:
December 25th, 2008 at 5:20 pmOK, so does this mean that in a private judicial system, if you don’t like the verdict then the process of appeal lets you choose another, different law firm to hear your case?
I guess that corruption is possible in either the existing system or any proposed system, but there still needs to be a regulatory body or oversight committee to check up on the practice of the private firms. Otherwise it would be too easy for rich or big business to buy the main players in the privatized system.
As with any open system, the worst thing that can happen is one group achieves a monopoly as then they dominate the market and achieve the same levels of inefficiency and corruption as the static, government run system.
If this can be avoided by correct regulation then the proposal is a good one.
GP Says:
December 26th, 2008 at 6:58 pmBalanced analysis and thanks for highlighting flaws in private judiciary systems too. One more point I wud like to mention - i.e. Underground private judiciary systems ran by mafia and dons which are most saught after by parties in dispute(most of them are in illegal business) as quick way of getting justice and most importantly - There is no appeal on their verdict as any refusal to obey can result into termination of life of offending members
Arvind Says:
December 26th, 2008 at 11:06 pmThere is one point I’d like to make about this show. It is based on ‘Judge Judy,’ a show here in the US. There have been reports that the show is rigged. It is not difficult to rig these shows. If both parties are paid more money than they can ever dream of getting by taking their lawsuit to completion, they will accept the verdict given on TV.
The problem here is that not every private arbitrator can afford to pay off both parties to accept their ruling. And not every private arbitrator has a stake in doing so. Most likely, the private arbitrator can be bought off by the highest bidder.
Incognito Says:
December 27th, 2008 at 12:18 amAgree with Arvind’s comment at sl1 above.
Unpretentious Diva Says:
December 27th, 2008 at 12:30 amMost likely, the private arbitrator can be bought off by the highest bidder.
Funny thing is, I have already discussed that case too.
But the thing is you are too much full of your socialistic ideas which makes you to ignore the write up.
It is a general fault. Incognito is suffering from similar disease known as “Socialism”.
Arvind Says:
December 27th, 2008 at 1:26 amBut the thing is you are too much full of your socialistic ideas which makes you to ignore the write up.
I am totally against socialism of any kind including the Nehruvian-Stalinism pervasive in India. You make an assumption that I am for government control. Please, drop your assumptions and focus on the issue.
Why do you assume that there are only two kinds of arbitrators - government and the kind seen on TV in ‘Judge Judy’ kind of programs? We all know how bad the government system is, but the kind on TV is no solution. Kiran Bedi’s show is merely an imitation of ‘Judge Judy’ and as I pointed out, ‘Judge Judy’ is rigged. In the absence of rigging, a courtroom drama that fits into a 30 or 60 minute TV program does not work. It works when the arbitrator pays both parties to put on a show for the camera. That is an unrealistic system.
The solution that both sides could mutually agree to a set of rules and follow them misses the point that if they were willing to do that, we do not need any third party to resolve the issue! Why have an arbitrator in the first place?
Again, let me restate my point — I am all for an absence of a government; you miss the woods for the trees by analyzing the details of what is wrong in socialism while missing the fact that socialism *is* Communism by another name and that is what is wrong with it.
Let me also add that I have dealt with private arbitrators (let us just say it was on behalf of a legal entity without identifying its nature). The arbitrators have a vested interest in pushing both parties to compromise and sign on the dotted line instead of deciding who is right and who is wrong. They simply stall and want a settlement because the mediator can enhance his or her Resume. My guess (and a safe one at that) is that your suggestion is theoretical in nature without experience with real mediators.
Now again, please do not try to read any criticism of the private sector as a request for government contreol. There should be a better way of placing one’s arguments.
Unpretentious Diva Says:
December 27th, 2008 at 1:58 amNo well that is not the case. See, if there is a dispute over a matter, and the disputants need a judge, then no governmental judge will be forcing them to accept him as a judge.
The parties involved will be choosing their own agreed upon judge and jury before which they will put up there issue.
One can agree over the third party, he won’t agree to accept the second party’s judgment though.
The need of third party arbitrator brings out the question of either governmental judicial system or open market judicial system, and the post is about which is better.
There is again a little problem. Some cases may end in agreement, not all are of same nature. And when a disputant goes to the arbitrator, and the arbitrator being a professional explains him the basic natural and reasonable rights about the issue, then there remains no chance of just pushing out an agreement.
Second thing is, until both the disputants do not agree at a point, or until the guilty is not proven guilty on account of reasonable evidences and natural rights, the disputant may demand for another arbitrator. There is no restriction about that.
And well during your previous comment, you simply mentioned that arbitrator may cause corruption too, and I answered that i have discussed it.
See, disputants do not go to the arbitrator because they think arbitrator is more knowledgeable. They go for the third party judge to get justice, and until they won’t get justice, they won’t agree at any point.
Arvind Says:
December 27th, 2008 at 3:30 amI think what you say works very well in a football match. :-)
Real life is very different. The two parties are usually very hostile each other which is the main point you miss. This is the reason they will cede no quarter and mistrust anyone who rules on behalf of the other side. This includes judges in a statist system or in a private system. Let me reformulate my points as a question — what if one side refuses to go to *any* arbitrator? What is your solution in this case? What if it is the guilty party that refuses to go to any arbitrator?
Unpretentious Diva Says:
December 27th, 2008 at 4:01 amSo here is the problem for our discussion.
First of all I am not talking of a football match. I am talking of the situation where disputants NEEDS a third party arbritator. I have not touched the security system and police system yet which will cover your questions.
Well this particular post is not for discussion of privatization of security agencies or police.
We are discussing privatization of Judicial system, judicial System comes in act when two disputants NEEDS a third party arbitrator.
So your question is actually not related to this post directly.
But that doesn’t mean your question is out of span.
And now I can now understand why did you mentioned the Mafia during your first post. Actually, I haven’t talked of private police/security system yet. When I will discuss that, I will answer your posit problems of Mafia (or bad guys security force) and the situation “What if a disputant refuses to accept any arbitrator.
But at present, this post is not covering the topic of your question, this post is essentially about the privatization of judges, that is the third party arbitrator.
I will posit the answer in other post, so please wait for it.
renegade_division Says:
December 27th, 2008 at 4:03 amThen you go to your court and get a judgment, if the court gives a verdict of not-guilty well you go off with your life.
If the court says guilty, then the guilty party either challenge that verdict with their own choice of court, or your defense agency will execute that judgment and punish the guilty party.
If the guilty party has their defense agency too then the defense agency would wanna get their judgment(that means they will either accept the judgment of your court, or go to their own court and get a judgment), if that judgment is “guilty” too then his defense agency must surrender the guilty client to your defense agency or if you want restitutionary damages then they must extract it and give it to you.
If the second judgment is “not guilty” then your defense agency(lets call it DRO A, Dispute Resolution Agency A), is said to be in dispute with his defense agency(lets call it DRO B). Now DRO A and DRO B will go to their pre-defined dispute resolution court, a common court.
Two out of three judgments would be binding. That is if this third court said guilty then the client is guilty and DRO B will be bind by the decision(that would be the precondition of going to the third court), if court says not guilty then DRO A will have to retreat and accept the judgment.
If both DRO A and DRO B do not agree upon a common court then again same procedure will follow for their dispute resolution.
Worst comes to worse DRO A and DRO B will be either fighting(but it has a very less probability) OR DRO A and DRO B will be all lock stock and barrels they will not have any pacts with each other over any clients and the other DRO agencies must take sides or mediate between them.
Basically this worst case scenario will be really bad for their clients and they will end up losing all their major clients but will be left with cheats and swindles.
Arvind Says:
December 27th, 2008 at 4:12 amWe are discussing privatization of Judicial system, judicial System comes in act when two disputants NEEDS a third party arbitrator.
Not entirely true. Many times one party drags the other party to court. It is not by mutual consent that they end up in a court. That is why I mentioned a football match. In this scenario, it is a friendly competition where both sides agree to a referee and arbitration council prior to the game.
This is true of private contracts too. It happens all the time in the corporate world. When two parties sign a contract, they also sign an agreement stating that they waive their rights to sue each other and the arbitrator in case of a dispute will be XYZ company.
I’ll wait for your post on the system for individuals who do not mutually agree to a third party. I did not mention mafia run systems. That was someone else. I mentioned lynch-mobs. There is a difference between the two. Mafias are like the state. They have appointed themselves the judges. Lynch mobs are decentralized version of the judicial system, so decentralized that they operate at the individual level. Actions of the jury (i.e., the mob) are usually consistent with the degree of the crime. A person who owes money is forced to part with it, a pickpocket gets thrashed, while a terrorist gets beaten to death.
Unpretentious Diva Says:
December 27th, 2008 at 4:31 am@ Arvind
As i already said, you will need to wait. it is going to be a series of addressing whole security and crime issue including international affairs.
I and other writers are working on that. let us present the issue in a better single post for single stream of questions basis.
renegade_division Says:
December 27th, 2008 at 4:37 am@Arvind
Dude I just answered your question in detailed manner, did you even read my comment?
renegade_division Says:
December 27th, 2008 at 5:04 am@Arvind
The writer Unpretentious is talking about is ME! I am suppose to write that article, but I don’t think so there is a need for a post since I already answered your question and you don’t have a new doubt about it.
Arvind Says:
December 27th, 2008 at 7:30 ambut I don’t think so there is a need for a post since I already answered your question and you don’t have a new doubt about it.
Go ahead and answer it because I have been assuming anarchy and an absence of a government sanctioned legal system. My questions were related to such a system. And I should correct you, they are not “doubts” in the sense of actual doubts, but an attempt to get you to accept the fact that individuals and/or groups of individuals will dole out justice in an anarchy.
RawThinkTank Says:
December 28th, 2008 at 9:11 amInstead law should be decentralized, no need of cases in supreme courts. How do smallest countries (in size and population) do with their judiciary ?
The supreme courts should only keep an check on if the local courts are performing according to the laws.
In Indian the problem is the number of courts, this is the real cause of chaos.
RawThinkTank Says:
December 28th, 2008 at 9:23 am“Yet in the case of Open Market private Judiciary system, future disputants could avoid the third party arbiters/judges/jury accused of accepting the bribes in the past.”
Look at Pepsi and Cocacola, do we hav a choice other than these two; Look at US Internet providers , there are only two there; Its called DUOPOLY. Look at our electric suppliers, privatized but do we hav a choice to reject one and select another ?
Unpretentious Diva Says:
December 28th, 2008 at 10:57 amThere are many options available.
There are Parle’s drinks like Frooti, apple etc. There are Godrej juices too.
Also, you have a whole set of Indian packed drinks from various local and state enterprises, like in Delhi and UP, Mother Dairy provides a whole range of drinks, in Rajasthan and MP, Saras and Sanchi provides whole lot of various Indian drinks. There are immense options available even in the absense of free market.
Even though government keeps curbing any chances of entreprenurship in India, indians have provided a healthy competition to pepsi and cola.
About electricity, who told you it is privatized? It is not privatized anywhere in india, it has just been contracted with all tenders and contracts designed and controlled by government.
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