Choice and Justice
Justice in the Context of Free Will
The United States is a country which prides itself on its system of justice. As citizens, we often recite the pledge of allegiance which concludes with a promise of “liberty and justice for all.”
Most of us probably have a pretty similar idea of what liberty is. But what is justice? When we speak of it, are we all talking about the same thing?
There are indeed many different popular notions of justice. Let us explore just a few:
Social Justice
This has become a popular term—especially in recent decades. The idea is born of noble intentions. It can be uncomfortable to notice how different people are subject to such a variety of different circumstances.
Some are rich, some are poor. We all have widely varying levels of talents, skills and abilities. Likewise we each have our own weaknesses, limitations and failings.
People are born into a particular genetic heritage which produces varying physical characteristics such skin color, hair color, and physical strength or abilities. And then we are exposed to varying cultural practices and economic conditions as we are growing to become mature adults. All these factors can have an impact on how successful we may become at living, prospering, and pursuing our own happiness.
Everyone has certain innate strengths as well as some challenges. Some of our challenges are easier to overcome. Others can be very difficult.
The idea of social justice is born of the notion that all these differences are unfair, and therefore unjust. It doesn’t seem right that one person should grow up with access to all the things money can buy, while another may grow up in poverty—lacking the same kinds of resources. Furthermore, it doesn’t seem right when one demographic group seems to always end up more successful in one way or another.
It is clear, government is in the business of administering justice, so maybe government should take appropriate steps to equalize things, to make things a little more fair. But when we follow this line of reasoning to its logical conclusion, we can quickly discover its fatal flaws.
First, there has never been a time in our history when all people shared the same strengths and weaknesses. Who would even want such a thing? We often discuss the idea of diversity as a social strength—an asset.
For example, who is to say that growing up rich is actually better than growing up poor? Is there legitimate research data to suggest that people with humble upbringings are unable to attain happiness in life? There seems to be plenty of anecdotal evidence that wealth is no guaranty of happiness, or even success.
Furthermore, enforcing outcomes and sameness in a society raises untenable moral obstacles. Imagine, for example, someone who is born with only one kidney. Does this person have a claim on the rest of society to provide a second one?
Or perhaps everyone with two kidneys should be forced to give one up so no one will have an unfair advantage. It is easy to see the folly of such an approach when discussing kidneys. Yet we sometimes devolve to this kind of approach when seeking to normalize education, wealth, and other opportunities in our society.
It is not moral or right to pull down the more fortunate merely for the sake of enforcing someone’s notion of fairness. If anything, we should be trying to lift up those who are disadvantaged.
Alternately, perhaps a donor should be selected at random from the society and forced to give up one of his own kidneys. That would merely transfer the problem to a new and different victim. As with all forcefully applied “charity,” we may indeed help one person, but only at the expense of another.
Today’s advocates for social justice are probably not looking for kidneys, but more typically just money. But once we understand the true relationship between money and human life, we realize they are actually demanding heart beats, or the life essence of other people.
And herein lies the real flaw in the notion. In the end, Social Justice must always be applied by the use of force. And who in our society is qualified to decide how that force will be meted out? Who will become the donors and who gets to be the recipients?
Is it just to rob one person of the days of his life to satisfy the wants or needs of another?
Thankfully, people come in widely varying shapes, sizes, races, cultures and abilities. We have different notions of what makes life worth living, based on our unique economic, social, and cultural values. This kind of diversity truly can add to our strength, but only if we learn to appreciate it, rather than trying to extinguish it by trying to make everyone the same.
Perhaps a better place to apply the principle is in the way we govern. Governments are inherently an instrument of force.
Maybe we shouldn’t focus so much on forcing citizens to treat each other a certain way. And maybe we don’t have to try to undo the natural diversity of nature. Instead perhaps Social Justice should be applied to making government itself treat its citizens in a consistent and fair way.
Criminal Justice
This is another popular notion that has gotten way off track in our modern culture. It goes like this: “We are a nation of laws. So if you break the laws, you are a criminal, and criminals must be punished. That is how we maintain the rule of law. This is what is meant by justice.”
Along with this obtuse view of justice, we sometimes make the false assumption that democracy is a magic word that makes it all OK. Most people, at least in western culture, think laws established by a monarch, a church, or a privileged class are illegitimate and should not rightly be enforced. Yet many of the same people will have no problem subjecting themselves and others to an unreasonable law simply because a majority has voted for it.
Somehow this phenomenon of 51% of the people favoring a particular behavior is supposed to make it moral and ethical to impose that behavior on everyone else. But democracy is no guaranty against tyranny, as the American Founders recognized.
Imagine a majority who considers Wednesday to be their holy day and they really hate it when other people ride bicycles on their sabbath. So they pass a law punishing the rule breakers for bike riding on Wednesday. Is this justice? Or is this just another kind of subjugation, born out of religious zeal?
The mere existence of laws and punishments does not imply authentic justice.
The administering of punishments for crimes merely as a deterrent can have a place in a free society. But it can be very dangerous to allow this ominous power to go unchecked. We must be extremely careful with what we define as a crime, and on what basis society is justified in limiting the rights of individuals to engage in the prohibited behavior.
A good example of this is the political abuse in the justice system we have seen recently. Over time, there has been a gradual and constant evolution of more and more laws and regulations. It is now likely, we each break multiple laws every day, at every level, local, state and federal.
These include environmental laws, tax laws, driving laws, campaign finance laws, and on and on. In fact, there are so many laws, no one can possibly know them all, let alone keep them all.
This, along with the notion of prosecutorial discretion has lead to some of the greatest political corruption in our history.
It works like this: If you control the justice system, you have the ability to use the power of government to punish anyone, anywhere, any time. Since everyone is guilty of something, all you have to do is keep looking, and keep investigating. Eventually you will be able to find something.
You can effectively control who maintains political power by choosing to investigate and prosecute those you oppose. Those who you want to keep in power, you can simply exonerate, or simply choose not to prosecute. They get a pass while others do not.
To add to the arsenal, our prosecutors have developed the idea of granting immunity. If they can’t find enough evidence to get you on a crime, they simply begin to investigate and prosecute anyone you have ever worked with. Then, they offer immunity from prosecution in exchange for testimony that will convict you of a crime, whether true or contrived merely to satisfy the prosecutors.
This kind of corruption has sometimes been dubbed the “criminalization of politics.” Now you don’t have to be satisfied with simply defeating your political opponents in an election. You can destroy their lives, their families, and their fortunes.
The Bill of Rights was designed to avoid these kinds of abuses. Most notably, there are protections enumerated in the fourth, fifth and sixth amendments meant to protect the innocent from rogue prosecutors. But as we can see in the political wars before us, our “justice system” has morphed to completely ignore the intent of these protections, if not the letter.
Criminal justice only works when it is applied to everyone equally. Once those in power discover they can apply their own discretion to the process, you end up with a two-tiered justice system: One for those who support them, and something quite different for anyone who might oppose them.
Preemptive Justice
Unfortunately, it is unreasonable to expect a justice system can prevent all inequities from occurring in the first place. True, once a criminal has demonstrated his intent to break the law, he can be isolated from society. And this can do much to prevent future infractions.
But how do we prevent people from committing a first-time offense? Unfortunately, we probably can not.
In order to live in a free society, we must begin with a presumption of innocence. We must assume each person will be respectful of his neighbor, until he demonstrates otherwise. Sadly, this implies there are going to be some victims.
The only way to prevent all crimes would be to limit everyone’s freedom so completely that we would not even have access to one another. Not only is that unrealistic, it is undesirable. Are we willing to completely sacrifice our freedom for the promise of security, while we live out our life isolated in an individual security cell?
Still, each time someone is victimized by a crime, the cry goes out for government to do more to prevent such behavior in the future. Too often, government responds by attempting to regulate the behaviors we associate with the crime.
For example, if criminals begin to use knives to rob people in public parks, we can try to outlaw knives and public parks. But this does not really accomplish much. Robbery is already illegal.
Merely adding another layer of laws on top of the existing ones is not likely to improve the situation. It will just make it inconvenient or worse, even more dangerous, for the law-abiding among us who can no longer possess a knife or walk in a park.
A justice system should focus it’s efforts at prevention on those offenders who have demonstrated their willingness to victimize other people. For first time offenders, we will have to be satisfied with those remedies offered by the following section:
Civil Justice
This concept is born of the same principles that inspired the Declaration of Independence. The idea is, people should be free to enjoy certain inalienable rights, including life, liberty, and the pursuit of happiness.In order for all people to enjoy such rights, there must be limits on the way each person enjoys his or her own freedom. One person must take reasonable care to see that his own exercise of rights does not infringe on another’s ability to enjoy her rights.
In Libertarian circles, this is sometimes referred to as an obligation of non-aggression. We can make our own choices about how we will live our lives. But we don’t necessarily have the right to determine another person’s path or choices. And we can’t deprive another person of life, liberty or property, just to satisfy our own wants or needs.
In other words, we need to cooperate in order to maximize choices and liberty for everyone.
Unfortunately we do sometimes bring harm to others, whether accidentally or on purpose. When this happens, the victim does have a right to seek redress—to be restored and made whole again, as he was before the infringement. And what better person to provide this restoration than the offender himself. This creates a disincentive for the offender to repeat the crime against others. And it also avoids placing the burden of restoration on other innocent members of society who bear no responsibility for the crime.
Absent government, restitution could likely only occur by the victim applying some kind of force against the offender. Obviously, this could quickly get out of hand and devolve into endless feuding.
Thankfully, we live in a context of civil government where we can instead use courts to settle our differences. But this system of justice has also gotten off track, and is in need of some basic reforms to better offer the protections it was meant to.
We need to refocus our efforts on restitution, rather than merely punishment. The effort should be to force the offender to make his victims whole again, to the degree this is possible.
In addition to the protection of inalienable rights, Civil Justice also applies to the enforcement of private contracts. In the pursuit of happiness, free citizens enjoy a right of association. This means we can cooperate with others of our choosing to engage in trade or other cooperative efforts.
When a covenant or promise is made between two competent informed, and consenting people, they each should have a reasonable expectation the other will keep his word. If that promise is broken by one party, the victim of the breach should also be justified in seeking redress for the resulting harm.
In fact, contract enforcement is at the very root of a civilized society and a productive economy. If people can not depend on their contracts being honored, it becomes impossible to conduct productive trade and commerce. Most notably, it is impossible to implement any kind of useful money. And without some form of money, it is very difficult to enjoy economic prosperity.
Just Justice
So we see, the term justice can be used to pursue very different goals:
- To protect our individual freedom and inalienable rights; or
- To promote the political, religious or idealogical interests of those who are in power, whether that is a tyrant, a ruling class, or a simple majority.
From the standpoint of liberty and choice, one approach is moral, the other is not.
True rights, properly understood are simple, general, and equally applicable to all people at once. Sometimes these are called “negative rights” as they define the ways in which others, particularly in the form of government, should not be allowed to afflict us. Government is on moral ground when it applies justice to protect such rights equally and without political or ideological bias. As lady liberty reminds us, true justice is blind.
But there is an alternate idea sometimes called “positive rights.” This embodies the idea that there are certain obligations society, meaning other people, have toward you. In other words, other people owe you something. You have a right to collect something from others. And this always seems to boil down to collecting heart beats—your life at the expense of theirs.
It is easy to see, if such rights are applied to only a subset of society, it leads to a kind of subjugation, or slavery by degrees. Certain people are entitled to the enjoyment of certain privileges. Other people are obliged to provide them.
And if all people attempt to collect on such entitlements at once, such an arrangement is clearly unsustainable. It is impossible for everyone to collect what they want or need from everyone else. No one is left to fulfill such empty promises.
Triggering Justice
We can gain further insight into true and false notions of justice by categorizing the two basic types of crimes that normally trigger a response from a justice system:
- Crimes Against Society
- Crimes Against Others
As we discussed, the justice system is on the firmest moral ground when it concentrates on protecting everyone’s individual liberty, at once. This is best done simply by attempting to restore those subject to a crime, at the expense of those who perpetrated it.
Intrinsic in this principle, is the notion of a victim. If there is a victim, there is a good reason to bring in a system of justice to put things back right again, if possible.
But what if there is no clear victim? This is often what we mean by a crime against society. And our first question should be: If there is no victim, why would we make such behavior illegal in the first place? To better understand, let us list some examples of crimes that clearly do involve a victim:
- Robbery
- Murder
- Assault
- Fraud
- Breach of Contract
It is clear to see how some form of restitution could be made in each of these cases. True, in the case of murder and certain assaults, nothing may restore a victim as before, but that should not stop us from trying.
First, it is just that any victims receive such compensation as is feasible. And second, perpetrators need to make restitution, both for the purpose of deterring future crimes, and for preparing the offender for a more productive and cooperative future role in society.
So what about this notion of crimes against society? Ideally, we should not use this as a catch-all for everything else we just want to make illegal, even though it may not actually be hurting anyone. Legitimate crimes against society are so, because they hurt everyone at once.
Here are some examples:
- Treason
- Sedition
- Desertion
- Perjury
- Obstruction of Justice
- Contempt of Court
One can see, although there is not generally a specific victim in these crimes, still the fabric of society is damaged by the offense. These crimes break down the country, its government, or its ability to operate a system of justice. So at least for the purposes of maintaining a functioning system of government, these are reasonably considered crimes against society.
We can make another list of crimes that are limited to outsiders, or those who are not the natural members of a society.
- Illegal Immigration
- Spying
- Invasion
- Terrorism
In other words: A free country is established when free people associate together to cooperate in the protection of their own rights. Their borders create a boundary inside of which they will exercise their system of justice to keep everyone respectful of each other’s liberties. Borders also serve as a recognition that other nations and people have a similar right to exist within their own territories, and according to other social orders they may organize by to their own collective will.
There is room in the world for many different ways of doing things. Borders are a way of protecting various cultures in the practice of their own methods for civil society.
Unfortunately, the notion of crimes against society gets used too often to justify laws that are made for religious or idealogical reasons and do not really have a clear victim. Certainly one could make an argument that these behaviors damage society in some way. But often, that determination is not clear or undeniable.
For example, consider these controversial behaviors:
- Recreational Drug and Alcohol Consumption
- Pornography
- Prostitution
- Blasphemy
All these have been illegal at some time, in one place or another. And they share a common theme: They describe behaviors that are considered acceptable by some people and unacceptable by others. But, with appropriate precautions, they can be carried out in a way that does not bring undue harm to outside parties. It just requires some tolerance and cooperation.
In a society friendly to choice, people should work together to respect each other’s wants, opinions and needs. An informed, consenting adult should be able to choose for himself whether to engage in drug use or participate in pornography. At the same time, everyone else should also be able to live in a society where they and their children are not exposed to the harmful effects of such things.
Such differences can effectively be dealt with by respecting the privacy and choices of others. This means letting adults choose for themselves, but maintaining full accountability for the consequences of their possibly misguided choices. It also means protecting minors and others who are not yet capable of making their own fully informed choices.
For example, people should take special care in the use of substances which may impair their safety as an operator of a car or other equipment. Furthermore, they should not rely on others to subsidize the unemployment or increased cost of health care that may result from risky or dangerous behaviors.
Activities that offend the religious tenets of reasonably large numbers of other people should be carried on in more private settings where possible. Certainly we can exercise our own agency without the need for public displays or the need for any attempt at recruitment of those not yet of age.
Finally, in cases where those engaging in controversial behaviors do bring harm to others, victims should enjoy full access to civil courts, and should not be limited by excessive attorneys fees to reasonably obtain redress for their actual damages.
Applying Justice
It is evident, a system of justice must be capable of administering force. The whole point is, what will we to do when one person infringes the liberties of another. If restitution is not performed voluntarily, it may well require force to cause the offender to make the victim whole again.
Likewise, false justice applies force—and wrongly so. This is the very reason it is so dangerous in the hands of corrupt or misguided prosecutors or politicians.
The application of force typically takes one of the following forms:
- Confiscation (of property or money)
- Confinement
- Exile
Confiscation
Confiscation includes the practices of property forfeiture and the imposition of fines. This is currently the most common form of punishment outside of imprisonment.
In the case of (the more moral) Civil Justice, fines would ideally be focused on two purposes: First, as a means of providing restitution to the victim of the crime. And second, to reimburse tax payers for the costs of enforcement and prosecution. As a bonus, fines serve as a deterrent to future abuses, and offenders feel like they have “paid their debt” and so can go on to become more responsible members of society.
Unfortunately, our Criminal Justice system has gotten way out of hand in the use of fines. Infractions such as traffic violations are sometimes used to augment the budgets of the police departments who enforce them. Such fines are not necessarily assessed against people who actually inflict damage, but rather for behaviors we determine might lead to an accident or loss. Examples include speeding or driving without a seatbelt.
In some cases, fines can be set excessively high, and broad discretion is given to law enforcement and/or prosecutors with the hope they will use it to harshly punish the really bad guys, while giving a lighter pass to people who may require a lighter approach. This broad power often leads to corruption and the abuse of power for political purposes. This has occurred in the enforcement of environmental law as well as the regulation of business, banking and other commerce.
If the Environmental Protection Agency doesn’t like the way you are treating an area they consider a wetland, even on property you own, you could be subject to fines in excess of $25,000 a day. If the Federal Trade Commission doesn’t like the product you are selling, or how you run your business, they can assess arbitrary fines tailored to shut down your business and prevent your ability to effectively engage in future commerce. The cost of fighting against such fines is so prohibitive, it effectively circumvents the protections built into the sixth amendment.
No one dares fight even against an unjustified charge or, for that matter, even an investigation. The risks are too high and the chances of exoneration too remote. Essentially government holds all the cards. And this leads unavoidably to the abuse of power.
These kind of fines seldom go to restoring a victim. In most cases, there is no victim—just an idealogical cause.
We can hope the government is simply trying to dissuade you from engaging in behavior which is disapproved of by those in power. But in worse cases, corrupt officials may be using the immense power of government to deprive you of your property, to intimidate those with opposing political views, or simply to further their own careers or financial gains.
For the legitimate purpose of restitution, confiscation is certainly a valid approach. But when applied solely for punitive purposes, it is seldom constructive and can become a magnet for corruption and other types of misconduct.
Confinement
The United States has an incredibly high rate of incarceration—especially in comparison to the rest of the world.
Like other forms of force, incarceration can be a legitimate means in the application of justice. But our justice system has gradually forgotten about the notion of victim’s restitution and instead, now focuses mostly on the notion of punishment.
As we have done so, we have made all manner of things illegal, just because a legislature, or in some cases, even a bureaucracy, has determined it to be so. The result has been more and more people going through the prison system. And to what end?
While punishment itself does serve as a deterrent, we should ask ourselves what we are trying to deter? If it is a legitimate civil offense against another human being, incarceration can often have a negative effect. If the goal is restitution for the victim, incarceration can effectively eliminate the possibility of the offender working in a productive job where restitution can be provided. A fine, directed to the victim, would be a much more productive solution.
If the goal is simply punishment, we should be careful about what we define as a crime. Incarceration should be reserved for criminals who can not be trusted to act responsibly toward the rights of other individuals in society. If the offense has no victim, it should probably not be criminalized in the first place. And if it is an act for which a victim can readily and fully be restored, we should be using a fine, rather than imprisonment.
If a person is not a hardened criminal when they go into prison, they very possibly will be when they get out. This aspect of justice is badly in need of reform if we are to hope to return to a society based on choice and individual freedom.
Exile
Most societies don’t use exile much anymore. It used to be a fairly common notion. Today, the closest comparison would be the deportation of individuals who break immigration laws.
In fact, it is a pretty humane and potentially productive form of justice—especially when applied to laws that don’t have a clear victim, or are deemed to be a crime against society.
The notion is pretty simple. If you violate the rules of a given society, maybe you shouldn’t be allowed to live in that society.
As a practical example, we noted that things like drug use and sexual behaviors shouldn’t be a matter for government, at least at the federal level. However, many people don’t want to live in a society riddled with drug dealers and prostitutes. So the idea is to create zones or areas where people of differing moral beliefs can practice life according to their own choosing, and hopefully bear the full consequence of their choices, whether good or bad.
This is similar to the notion of national borders, but extended down to smaller geographical areas. At the smallest level is your home, your private property, where you get to set most of the rules. Going up from there, are local, county and state governments.
When these jurisdictions are allowed more control over the setting of public standards, overall freedom is increased. For example, you may not be able to legally buy or consume drugs everywhere, but you probably can somewhere. People can gravitate to the areas most compatible with their own personal beliefs, and so increased choice is fostered.
If we avoid the urge to tax and re-distribute at the highest levels, accountability can also be achieved. In other words, let each jurisdiction experience the consequences of their own policy choices.
If more liberal policies lead to greater prosperity, those local cultures who practice such things will benefit from their choices. Likewise, if apparently victimless crimes truly do break down society, let those jurisdictions who allow them bear the consequences of their foolish choices.
Now back to exile. If you choose to take drugs in a jurisdiction that does not allow it, you should probably be subject to a fine for the trouble of catching and prosecuting you. But if you insist on breaking the rules of that jurisdiction, maybe you shouldn’t be allowed to live there—at least not without facing harsher consequences such as stiffer fines, or ultimate incarceration.
Likewise, all the way up to the federal level: If you are willing to work within the laws and processes set forth by duly established constitutional order, then you get to stay in the country. But if you purposefully circumvent or undermine that order, perhaps you need to find another country more friendly to your idea of civil society.
There are a great number of people within western countries who openly seek the destruction of that civil society. Some seek to replace the United States’ Constitutional Republic with a social democracy. Others may want to replace it with a theocracy, such as sharia law.
There is a duly constituted way of amending the United States Constitution. If you can get to the kind of government you want by following the Constitution, or by amending it, then you should make every effort to do so. But if you are engaged in undermining that system, and trying to turn it into something else, by any means other than the established method of amendment, you are really guilty of treason or sedition and should be prosecuted.
And what better consequence for treason or sedition than exile. You still may be a great person. Your desired method for government may even be something legitimate.
Just do it by the consent of the governed, or do it somewhere else. That is what exile is all about.
Conclusions
Justice is best when it is truly just.
An excellent standard is that proposed by James Madison: a nation conceived in liberty. Personal liberty implies maximum choices and freedom for everyone, at once—not privilege for one person or group, at the expense of another.
We get there by focusing our justice system on crimes with clearly defined victims, and then pursuing the notion of restitution, rather than merely punishment. Prison should be reserved primarily for violent criminals—those who can not be trusted in the society to avoid crimes which can not be fully restored.
A country based on choice should have a very brief and succinct set of crimes against society. And these should earn the offender a one-way ticket out of the society. Only those who do not respect a duly applied exile would face harsher punishments such as prison.
We must avoid creating laws against behaviors just because we just don’t like them. This is particularly true at the federal level. Give states, counties, cities, and even families more control to determine practices according to their prevailing cultural values. But make sure their recourse is primarily limited to controlling who gets to be a member of their society. Don’t allow local law enforcement to deprive a person of his liberty simply for breaching a local value.
We can become a nation of liberty and choice. We just need to cooperate with each other, respect each other, and tolerate each other.
And what better way than to begin by reforming our justice system to bring us back to the kind of country our founders established for us—a country where every person is free to live life, enjoy liberty, and pursue happiness as his conscience may dictate.