Dec
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Law: The rule of conduct and the mechanism for applying those rules
The topic of private arbitration has been covered on Reason For Liberty before[1][2], but the question is what sort of incentives does socialization of justice and security provide to a peoples? How is this different from those of custom law and privatized defense?
Private Law
There is much historical precedence for law without the state. Anglo-Saxon customs law was used up until the invasions of the Normans and other Germanic people. The laws being based on customs and individual consent, first off, they were not violated very often to begin with. If they were, why was it that if the defendant were convicted, he would submit to the judgment? Social ostracism, yes. But more importantly, the law was based on reciprocity of defense and individual and property rights. Crimes were considered not “crimes again humanity”, “the nation,” “the king,” or “the People” but only as one individual committing a crime against another. Generally, there was some sort of economic restitution paid as opposed to capital punishment and the like. William C Wooldridge mentions one medieval example in Uncle Sam the Monopoly Man[3]:
Merchants made their courts work simply by agreeing to abide by the results. The merchant who broke the understanding would not be sent to jail, to be sure, but neither would he long continue to be a merchant, for the compliance exacted by his fellows, and their power over his goods, proved if anything more effective than physical coercion. Take John of Homing, who made his living marketing wholesale quantities of fish. When John sold a lot of herring on the representation that it conformed to a three-barrel sample, but which, his fellow merchants found, was actually mixed with “sticklebacks and putrid herring,” he made good the deficiency on pain of economic ostracism.
If you are interested in Bollywood movies then I suggest Bulandi starring Rajanikant, where he plays the role of the village judge, and he punishes a rapist to be out of the village for 18 years and marry the girl he raped(which is a horrible Indian mentality that the solution of a rape is marrying the victim to her rapist), and that osctracization was a worthy punishment.[2]
Why did these “barbarians” not resort to killing often? Because they had more to gain from the mutual defense that person would provide after they had suffered their punishment then from any imagined idea of something being brought to “Justice” by taking a criminals life. If the defendant did not meet his obligation, the plaintiff had the right to kill him. So, each person submitted to the law not only because they were generally accepted social mores, but because if you did not submit, you were kept outside of the protection of the fellows in your group. Should someone harm you in any way, you alone will have to defend yourself(and your opinion alone, as a criminal, has no credence).
The Law Merchant, established in the 11th century, was also a stateless judicial system. They were extremely speedy because as most people were traveling merchants, they needed the courts to decide immediately so as not to incur extra economic hardships. This was based on economic transfers, all parties had entered into direct and voluntary contracts which established a moral and legal duty, and both parties roles were reversible: buyers become sellers and vice-versa. If the accused party does not heed the rulings and compensate the aggrieved, they would no longer be traded with, which also meant, if he was traded with, there would be nothing stopping any one from harming them in a transaction.
Again, we see a mutual benefit. People responded to the economic and security incentives by not committing the crime, and if they did, obeying the judgments because it would harm them economically; leave them defenseless against attacks both by people inside a certain legal system and outside; and general social ostracism since it was all based customs and commerce. From the actual judicial perspective, you would
- lose your position as an arbiter if you were not just and
- then be brought to trial for your tort against whomever you were unjust.
Another interesting fact is, in the administration of justice in historically private law, there is either the absence of a fee or a nominal one. Other examples of private law societies include the Kapaku of Papau New Guinea, many Native American tribes, Medieval Iceland and Ireland.
Public Law
From Common Law in England, we eventually got to what we have today — the civil and criminal law system. Each step that was taken in our travel from common law to authoritarian law was taken to consolidate power and money to the king and politically strong interest groups. Eventually, as now happens, criminal law became a matter of the “King’s Peace”. When once, if a crime was committed, the defendant paid the plaintiff and the settled the disputes locally, eventually the king started sending out representatives to make sure every group administered justice properly, and collected a fee when disputes were settled and a fee if the courts allowed a dispute to be settled outside of the court; if the defendant one, he paid a fee and if the accuser won, he paid a fee for wasting the king’s time. Being in the justice system is now a for-profit system based on politics.
As opposed to customs law where everybody agrees on the rules because they are customs, the State legal system is a law that comes from the top and works it way down. That means that there is less and less consensus among the people, more things become crimes due to special interest lobbying, and the cost of enforcement is higher because it is not agreed upon by the majority of people that it should be a crime.
Lets look at what sort of incentives this system has given us.
For all of the victimless crimes out there, we have a massive amount of lawyers prosecuting people for harming their own bodies — through drug and prostitution laws. Lawyers and defense attorneys have an incentive to prosecute as much as possible because it will further their career. Johnny gets a hooker. Who is hurt? Nobody. If the state finds out about it, we have to pay minimally for the
- The district attorney
- A grand jury of 23 people to indict and
- A defense lawyer for the defendant and
- A trial jury to find them guilty or innocent.
Should the trial jury find them guilty we pay for housing, food, rehabilitation programs, a GED program, and maybe job training through the correctional system.
This gives a huge incentive for those in the state system, defense attorneys, police, correctional officers, as well as those with special interests who want their morality impressed upon people a huge incentive to lobby for these victimless crime laws. After pressuring congress to pass them, they no longer have to deal with the burden of the costs incurred by enforcing such laws. As usual, the third-party paying system gives us an over-abundance of laws and criminals. Lawyers, since they get paid by the hour, have a very good reason to drag cases out as long as possible.
What about the courts themselves? They are free to everybody. We have back logs of cases that go for miles because people bring things to court more than they otherwise would because, again, people do not incur the costs. How do we divide the time? First come, first serve — so, I get caught smoking pot and a week later, your daughter is killed. If this were a private system, you would probably have the ability to get your case brought to the forefront through monetary compensation. But not in the public system.
Your daughter is killed and it takes months to present the case because we have a backlog of petty and/or victimless crimes. What happens? The criminal gets a plea-bargain, also stated as, you get less than you otherwise would have because all of our tax money goes into prosecuting pot-smokers. How about immunity? If a criminal agrees to give testimony against another criminal, they cannot have charges pressed against them about anything that they talk about. This says, it is okay to be a criminal if you also are not loyal.
The overuse of police is the most obvious. Again, because it is done on a first come, first serve basis, and the people using the police do not incur the costs of their call, it is totally abused. First off, people will call the police because of “noise pollution”. You have a party at your house and the cop comes, but really you weren’t that loud and anyhow, whose business is that? While the cop is on this call, there are real crimes happening that they now cannot attend to because your neighbor likes to eat his meal quietly. The police also work for the same people that the courts do. What happens when a police officer commits a crime? If he even gets brought to trial, and he probably won’t, he more than likely will not be convicted and if he is, it will be a much less harsh sentence than it otherwise would be. This creates a group of people who do not have to abide by the law.
And for the plaintiff? Well, whatever crime has been done to you, first you have to hire a lawyer, then you have to wait months and months for it to go to trial. Let’s say the criminal doesn’t have much money, so then your taxes are going to provide defense for him. They try to get a plea bargain to keep it out of court. You don’t want to accept that so you bring him to court. The process goes on for months and months and keep in mind, on top of your own legal fees and through taxes part of the criminals, your taxes are also going to running the entire court system. Then, he goes to jail and you have to help pay for the rest of his life but that is all. You get nothing in return for your effort, no justice is served unless paying for his room and board is the prize that you should be considered awarded.
Why capital punishment?
Rarely, because the State took over the legal system, were people killed because of crimes. Why was this? Criminals had to pay restitution with their own money or their own work if they didn’t have it, meaning the injustice was rectified. When it got to the point where that did not happen in criminal cases as now happens — when the court system gets paid, the lawyers gets paid, the police get paid — but the person who the crime was committed against gets nothing in the way of compensation, they want something to happen. Although we do it less and less often, the system that arose was taking the criminals life.
Conclusion
Instead of creating a system where law and justice prevail and the needs of people are met to their highest possible consensus, the State becoming the legal system has de-harmonized the organization of society, created perverse incentives for criminals and those that are part of the system, and created disincentives for those harmed to actually pursue justice because of the negative cost-benefit.
Footnotes:- The Prospects of Private Judicial System, Reason For Liberty, Author: Unpretentious Diva [↩]
- Third Party Arbitration in India, Reason For Liberty, Author: Renegade Division [↩] [↩]
- See William C Wooldridge, Uncle Sam the Monopoly Man (New Rochelle, N Y Arlington House, 1970), pp 111ff. [↩]
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280 views6 Responses to “Why a public judicial system creates corrupt incentives?”
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GP Says:
December 10th, 2009 at 7:35 amDegree of crime — it doesn’t matter whether cops are called for 1st degree murder or disturbing ur neighbours through noise pollution. When u say - there cud be other serious crimes happening out there which go unnoticed bcoz cops being busy questioning ur neighbours for huge volume of loud speaker - i wud like to ask u - who is at fault here? — a poor old man who couldn’t take the noise OR the cops who don’t have sufficient badnwidth in petroling potential crime zones in your city OR the guy with party mood who don’t know “how to keep his music down?”
Your daughter is killed and it takes months to present the case because we have a backlog of petty and/or victimless crimes.
==>Defintely. its irritating. But wht can u do?..some experts suggesting - fast track court system who can serve justice quickly. I am not sure how many of them working as expected as of now. But i guess its more to do with bandwidh of legal infrastructure ( no. of court rooms, juries,lawyers,etc.). If u upgrade that then may be u can see some quick results in serving justice.
Pivate vs Public law
==> I guess the sole reason for effective implementation of “private laws for particular coomunity” lies in its scope of applicability and frequency of cases. Even though I don’t have any statistical data to substantiate my theory. I mean its quite simple - when u talk about civil/govt laws rules and regulations - then they are suppose to cover all “ifs” and “buts” which are generally applicable for wide range of pupulation and NOT like restricting themselves to a particula community .So obviously - the delay part on its execution ( coz here u have to deal with number of cases that too by nor offending human rights and all different sort of legal and natural rights awarded to person), existence of loopholes, prosecution part,etc got to be delayed…I mean u can have quick justice - like they do serve under - various “Religious / shariya rules - especially - talibaan regime in Afganistan - but they are barbaric in nature.) ..
while in China - they seems to have “death penalty” even for corruption
which is a horrible Indian mentality that the solution of a rape is marrying the victim to her rapist
==>Thats the tragic part. But what happens is - After rape if that victim is pregnant after the crime then its very diificult for her to feed and bring-up the child. Not to forget about social stigma coz nobody wants to marry such gal. So the jury wants the culprit to accept her as wife..bit i guess in movie - it wasn’t case of rape it was case - where victim was sexually exploited under false pretext of marriage. So i guess it was not a bad call bu jury.
By the way noce article. Keep writing!
Amelia Vreeland Says:
December 10th, 2009 at 11:27 amOf course the old man who called about the noise complaint is partially at fault, but again, we have to look at the incentives within the system: when you are allowed to call the cops at any whim that you have, for whatever reason, and do not have to — or it seems you do not have to — bear any of the costs, this increases the demand. Even if we had the same crappy system that we do not, if we just made it so people had to pay like a $50 fee or something, I am confident in saying that people would make less stupid calls like this and just walk over and ask their neighbor to please turn their music down.
There is a lot of statistical evidence supporting that giving extra resources, the speed or allocative efficiency of the public system does not get any better.
This is an outdated example, but there is this 4 county court in West Virginia. In 1976, there was only one judge and about 1,600 cases; by 1979, after the circuit added an extra judge, the cases went up to 2,400. There was no big change in the demographics or economic make-up of the area. What happened was, “speeding it up,” at first through adding and extra judge made more people go because it was more worth their time because of the cost/benefit analysis of time spent in court vs. ignoring it or solving it privately. (Judge Neely, Why Courts Don’t Work) Just as you have to or want to do in any profession, too (and this is especially true of prosecutors), it is important to always be proving your worth and trying to expand your departments budget. How do you do this? By hearing the most cases, and the easiest solved cases that won’t be precedent setting. Because we give our district attorneys and our judge discretion, they will always pick the most obvious and easiest cases, not the ones most important to be solved; and they can send those cases to a plea bargain or higher court. In this way, they further their career. The same way politicians go “I got this law passed for you” when they want to be re-elected, ie, keep their job; so judges and the public prosecutors go “We got this many criminals off the street.” What are the easiest cases to solve? Non-violent, no victim crimes.
With police it is the same thing. If you put more people on the force, then generally they just get more sick days, start putting two officers in cars, more paid leave, etc. I do have data for this but it is really outdated. The unions are too strong, especially in my area. And again, they have an incentive to criminalize more and more people because then they can make more arrests and get bigger budgets and more prestige. I’m not saying cops or judges or prosecutors are bad people, just that these are the incentives handed to them.
And yes, the scope and frequency of the cases does change things. When you have a whole bureaucracy built up, there will always be more criminals because their jobs depend on it. When you have private law where it is just the people in the area, it will cover less ground (violent offenses and property crime) instead of what we have now, which is a myriad of victimless crimes. The incentives would be to get restitution to your neighbor, and punish a criminal so they don’t do it again — not to have a bigger budget from the state with no way of telling whether it is cost effective and actually having an incentive to not be cost effective so you again get a bigger budget.
Steven Vasquez Says:
December 10th, 2009 at 5:06 pmThe article has provocative premise, but what it leaves out and begs to question is, where do we go from here? From our history it is clear that evolutionary move towards statism is accepted by the people similar to the “frog in gradually boiling water” syndrome, and only a more radical shift in temperature causes the frog to leap out of the pot. As the author points out, there are several examples of stateless law and justice prevailing, but because it occurred in a time beyond their own generation (and for some similar concepts, even just beyond the current decade), it is easier to hold stringent to the current system even if it is proven to have worse results than previous systems (look at Department of Education or Federal Reserve as examples). In other words, many people choose to stay within their comfort zones, not willing to take any efforts at alternatives even if they can lead to marked improvements. Outside of mass critical thinking, these shifts can occur sooner by turning up the temperature faster, as we are now starting to feel the beginning of the welcoming warmth of government dissatisfaction and dissent.
In terms of justifying the state based justice system, one argument used is the efficiency found in centralization of laws, procedures, law enforcement techniques, and so forth, that allows it to scale up and replicate itself throughout the land. It is meant to have standardization and provide a means for drop in replacements of talent from one region to another. While in the classical sense, it is true that having a common system does break down the costs and resources of creating new systems from scratch and the expense of getting incompatible systems to work together, the folly of the system is the same as with any large organization (government, business, or religion) that loses external influence (competition) of the people (customers or citizens). These systems, for “efficiency sake”, end up being designed and modified by fewer and fewer people, and thus become easily influenced to work the system (gaming) for the benefits of the few rather than the original intent of the many. As stated before, this can lead to actual efficiencies to the system, but when it leads to the lack of competition, as in government and our justice system, then the efficiencies get confined to the few who design it at the expense of the system as a whole.
As the author points out, the King’s Men made sure justice was properly administered according to his rules and a fee was paid by all to ensure that it is maintained as such, even though the previous system was already efficient. There was probably a case where the Merchant law gave a severe punishment to a criminal, perhaps a friend of the King’s third cousin, so therefore to make sure it doesn’t happen again, all rules must be unified. By centralizing the system to be controlled by the few, it eventually leads to a broken system of corruption.
But is there a way to capture the efficiencies of having a common justice system, with standardization, scaling, and low starting costs/resources for new regions in modern times, yet still be stateless? With the advent of the Internet, such competition/collaboration based systems can flourish. We have standardizations being created for technology. We have collaborations making the world’s biggest encyclopedia (Wikipedia). We have open source collaboration to expand and improve existing software, removing much of the startup resources of creating code from scratch. Through open source collaboration, the GPL licensing system was created, which is quite analogous to the creation of a law. Admittedly, all these systems have its flaws, but so do all other existing static and statist systems. The difference is that these systems are flourishing and increasing innovation at exponential rates compared to its contemporaries. We will witness over the next decades whether open source (Linux and Google) will triumph over monopolies (Microsoft), and end up making bigger and better profits to the benefit of all.
But to tie this all together, perhaps now is a time to rethink our Justice system to a modern version of what the author was discussing, perhaps through the volunteer creation of an Open Source Common Law and Justice system. Regions can contribute to the resource, and choose to implement by consent the parts their community agree with. Knowledge, experience, success, and failures are shared through the system, and common procedures and standardizations form through nature free market forces, similar to open source software. Common Law would become common once more.
So the question to ask again is, where do we go from here?
GP Says:
December 11th, 2009 at 6:03 amI agree the neighbours could have solved the disputes amicably without calling cops which ultimately saves precious time and resources. But what happens is - Most of the youngsters are intolerant and not always in mood of listening even if its friendly request. So what ppl do is - just call the cops
and let them take care of the matter. Again I totally agree with wastage of time and resources for petty matters and sometimes prank calls to 911 from few youngsters but then if u start charging them per call to reduce this nuisance - I guess it may cuase bigger issue - especially if the caller is genuine victim but cud not report an issue just bcoz he/she is run out of money / cell balance. Out of court settlement or pleas bargain - cud be easier to dispose the cases off. I totally understand lawyers make some money out of it and always in search of such cases but then u got to understand they do have mouths to feed just like any other professionals with family . Not to mention about risks involved in their profession which is almost non-existent for other profession. I mean - u can’t just single them out bcoz they are taking more sick leaves than their other counterparts.
For me the real issue is - How to reduce ever increasing crime rate ? - Coz rest of the system is just reaping benefits based on its frequency and its occurences ( i.e. crime). I am sure cutting down their incentives won’t help in reducing crime rate. In fact, it cud result in less peoples persuing such careers due to lack of incentives which is again could be ominous sign - as reduction in police force/lawyers means - again huge piling of pending cases and delayed results.
JB Says:
February 17th, 2010 at 2:01 amI appreciated your article so much, and ask you to post this link on this site. It’s about prosecuting lawyers, judges, district attorneys, etc. and taking everything they own. Anything less is a waste of time.
I think they declared war on us and we have to respond.
Why a public judicial system creates corrupt incentives? | Reason for Liberty | From Ancap With Love Says:
August 8th, 2010 at 7:32 pm[…] topic of private arbitration has been covered on Reason For Liberty before[1][2], but the question is what sort of incentives does socialization of justice and security provide […]