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What would an Objectivist justice system look like?

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Jon Southall

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Would it be free at the point of access? What about the quality of legal representation? What would be illegal? Would it punish offenders, or rehabilitate them? How would victims be treated? Would it hold citizens to account for their actions internationally?

Please feel free to comment on any aspect which matters to you.

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Yes, but in civil cases the loser has to pay (not up front, but bear the resulting debt). That's a valid concern, but providing free council to defendants is likely best left to charity (since the government providing both the prosecution and defense is a conflict of interests). Violating the right to life, liberty and property. Punish. Same as now. Yes.

 

Oh, and this is all just my interpretation of Objectivism. Objectivism is a philosophy, not a legal system, so it doesn't contain any actual laws.

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As Nick said, Objectivism really does not have much if anything to say on these topics. My own responses to your questions would be:

- Yes, for criminal cases... free  at point of access, though I could see some types of fees being charged along the way in some circumstances, but never in a way that would deter the reporting or follow-up of crime

- For civil cases, some fees may be applied, payable by the loser. 

- What would be illegal: the violation of individual rights

- The system would punish offenders, would attempt to get compensation from them, and would try to change them in ways that reduce repeat offences (where this makes sense)

- Treatment of victims? Not sure what you're asking here

- Holding account for international actions. If the actions would violate local law, and if the perpetrator flees back to the country to escape foreign prosecution, it makes sense to disallow such safe haven. This might mean expatriation to the foreign country, or enabling a trial on local soil, or having a local trial. I think the details would depend on the nature of the crime, the nature of the foreign country and the practicalities of the options.

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On free council, I think that the provision of a basic level of free council -- e.g. to advise the defendant of his rights, to advise him how he should proceed, and perhaps to represent him to some extent -- is a check against government power.

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Thanks Nicky & Snerd. I think we mostly agree with eachother.

It's important to me because I think in order to introduce laissez-faire capitalism, which I think is the best economic system, an effective justice system is essential.

If individual rights aren't protected, or that protection is biased towards some rather than all, it impedes us achieving that economic system. Would you agree?

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Thanks Nicky & Snerd. I think we mostly agree with eachother.

It's important to me because I think in order to introduce laissez-faire capitalism, which I think is the best economic system, an effective justice system is essential.

If individual rights aren't protected, or that protection is biased towards some rather than all, it impedes us achieving that economic system. Would you agree?

Careful, rights are not protected in order to achieve an economic system.  A non-Objectivist might be confused by your statement.

 

Having the government's sole role the protection of individual rights IS EXACTLY the same system as laissez-faire capitalism.  It is what it means, no mixed economy, no economic interference.  Why ?  Because economic interference is EXACTLY the violation of individual rights.  So protecting individual rights does not somehow "lead" to the economic system "laissez-faire" it IS the system "laissez-faire".

 

 

 

As for the justice system, it may not be easy to distinguish where the justice system begins and ends.  Clearly the Objectivist government's sole role is the protection of individual rights.  This is radically different from other existing models/societies, where rights are not absolutes there is  purported "balancing of rights", person vs. person, person vs. state, etc.  In an Objectivist society soldiers would be hired by Govt, police officers would be hired by government, Judges would be hired by Government.  What is the status of a lawyer?

 

Would there be something like an investigative lawyer working for the Judge?  Surely people could hire lawyers to present their evidence and advocate their positions, but since the role of government is not so much resolution and balancing but Justice as such, there may be more of an emphasis on the decision/outcome and its Objective achievement of Justice and the protection of individual rights.

 

Bottom line, no person would have to pay anyone for Justice and his rights to be protected, but he may pay an advisor or lawyer to present his case if he believes he stands to benefit.  That said, if the Government is particularly effective at protecting individual's rights there may not be a need to seek such help.

Edited by StrictlyLogical
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Hi Strictly Logical,

 

I'm envisaging the kind of reaction I normally get from people when I tell them I am in favour of laissez-faire. Many think the removal of regulations for instance would lead to employees being treated poorly, uncontrolled pollution, poor quality standards which put people at risk and so on.

 

That's the reason for my stating protection of rights is a prerequisite of laissez-faire. If you had an ineffective justice system, employees could be treated poorly and would have no real recourse regardless of what's in their contract, or a polluter could cause damage to other people's health and private property without those sufferers having any power to stop or limit them, or someone could build a bridge used by motorists which has hidden defects making it unsafe, and when it collapses prematurely causing loss of life and property, no-one would be able to take action against the culprit. I often hear from people they don't agree with blanket controls and regulations, admitting they are poor and unfair in themselves, but argue they are better than the alternative. In the absence of a decent justice system, they may have a point.

 

An effective justice system would mean that rights and obligations are upheld for all parties concerned according to objective standards. I see the fact of interference in the economy as a consequence of a poor justice system. 

 

My main concern about access to the justice system is where a person's resources or connections are limited, to the extent that it acts as a material impediment to there being a fair trial. From what you are saying though, a Government which is good at protecting rights would appoint the case sufficient resource to have it investigated to the extent necessary for an objective decision to be made. That makes sense to me. I would want to ensure there were no conflicts of interest though.

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I see the fact of interference in the economy as a consequence of a poor justice system.

If "poor" means that it does not start by making individual rights primary, that's true. The weakness is in the fundamental political philosophy, and what it says about the purpose of government. The justice system is the concrete implementation of the political philosophy. The problem lies in the philosophy.
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That's the reason for my stating protection of rights is a prerequisite of laissez-faire.

 

Again I think you are slightly off in your statement.  Laissez-faire is not something that possesses a prerequisite.  Laissez-faire means non-initiation of force by government, i.e. non-violation of rights in the realm of economics.  It does not have anything to do with justice other than the fact that its absence is in-and-of-itself a violation of justice.

 

For example, imagine government interference in "social" , "relationship", "sexual" sphere, verses, a government policy of "staying out of personal relationships and bedrooms".  In an Objectivist society with "social/sexual laissez-faire" people can be friends and lovers with who they want, how ever many people they want, etc. they can have consensual sexual relationships, stick their fingers in each others ears, perform homosexual or bisexual acts etc. with no interference by government.  This is NOT directly related to anything to do with justice.  This is socially/sexually laissez-faire which only means "hands -off" or "leave it alone". 

 

Justice and the protection of individual rights (a separate issue) only becomes invoked when there is the initiation of force or fraud (non-consensual actions).  BUT that is a matter of justice, not to be conflated with freedom from interference in the social-sexual realm.  Now IF the government had laws restricting or mandating proper "social" arrangements, "relationships", and "sexual" conduct (which objectively fell outside of realm of initiation of harm between the individuals), those laws would be a violation of individual rights.

 

 

The same is exactly true for laissez-faire capitalism.  A government may or may not fail to protect rights, that is a question of how effective the justice system is.  But a government which does not ensure laissez-faire capitalism, i.e. does not adopt a non-interference policy with regard to economic relations between consenting adults (without initiation of force or fraud) is a government which IS VIOLATING individual rights.

 

 

A government's ability to protect rights is not a prerequisite to laissez-faire, quite the opposite is true, laissez-faire is a precondition (a necessary, although not a sufficient one) for a government to claim it protects individual rights because if it adopts any other "system" it is in fact violating them.

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Snerd - I agree with you.

Strictly Logical,

Thanks for your post. I do understand your point. I agree the role of the government should be to act against force initiators but otherwise not interfere.

I still think laissez-faire requires one has confidence in the contract - not just that it sets out rights and obligations, but that one can expect a dispute or a breach to be resolved in a just manner.

I don't follow the logic of your final paragraph. Laissez-faire is not a prerequisite of the government's ability to protect individual rights.

Perhaps our position converges on the point that without uncoerced consentual economic exchanges, laissez-faire cannot exist. My argument is that an effective justice system will ensure exchanges are consentual and uncoerced, therein making the existence of laissez-faire a possibility. In this sense I see it as being a prerequisite. Does this make sense?

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My argument is that an effective justice system will ensure exchanges are consentual and uncoerced, therein making the existence of laissez-faire a possibility. In this sense I see it as being a prerequisite. Does this make sense?

 

 

You are holding on to a concept which is out of context.  In a non-Objectivist system, in a non-rational, immoral system, all arenas of conduct are proper for government regulation, interference, systems, social engineering etc.  The assumption in this context is that government HAS a role in everything... to a lesser or a greater degree.

 

In an Objectivist system government's only proper role IS the protection of individual rights.  To the extent a purported government acts in any other way to interfere with citizen's activities it is no longer acting as government but as tyrant, thug, brute.

 

So, when you say an effective justice system makes laissez-faire "possible" you seem to be saying government must be good at protecting rights BEFORE it should STOP VIOLATING RIGHTS.  This comes from a place, an attitude which is clearly not Objectivist in origin. 

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Sorry but what concept am I holding on to that is out of context?

"Perhaps our position converges on the point that without uncoerced consentual economic exchanges, laissez-faire cannot exist."

Do you agree with me here or not? A yes or no will do.

You are stuck on the notion of the government violating rights but we are exploring this more broadly. If someone trades with you and doesn't keep to their side of the agreement, they are in breach of it. This doesn't have anything to do with rights violations by the government. If individuals or groups of them violate rights and this is a frequent occurrence in the economy, is it laissez-faire?

Your position of denying the importance of rights being protected as a prerequisite of laissez-faire is like claiming a community enjoys sexual freedom of action when rapists and other abusers are unlikely to be stopped. In such a community, that freedom will be thought to go too far - when rapists, homophobic attacks and other abuses are basically allowed to happen by the government because no one ever gets stopped or prosecuted.

I would say that until there is an effective justice system, to talk of sexual freedom or of economic freedom carries with it the talk of freedom for individuals to abuse one another. That's the premise behind all controls we both want to see less of - we have to agree and accept these violations of rights cannot and will not cease - people will not even want them to cease, until and unless individual rights are upheld rigorously.

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Sorry but what concept am I holding on to that is out of context?

 

"Perhaps our position converges on the point that without uncoerced consentual economic exchanges, laissez-faire cannot exist."

 

Do you agree with me here or not? A yes or no will do.

 

No.

 

Short version:

 

"Protection of individual rights" is the only purpose and the positive duty on the government, to enact its delegated power from sovereign individuals to use retaliatory force in response to the initiation of force against those individuals.  "Laissez-faire", although it follows logically from said only purpose of government, is a negative duty on the government NOT to commit *initiation* of force on individuals i.e. not to violate the individual rights of the individuals.  To the extent a government fails at the second duty to NOT violate the rights of individuals it fails at its primary purpose, but a government CAN fulfill its negative second duty perfectly while failing (although attempting) to fulfill its main purpose. Laissez-faire CAN exist even if crime exists.  Crime in fact would always exist as there always will be criminals, but this will be completely independent of governments chosen policy NOT to engage in the initiation of force on its citizens.

 

Extended Version:

 

Laissez-faire CAN exist whether or not every economic exchange is coerced by one party to the exchange, i.e. a theft (which I hold such as impossible), whether only some economic exchanges are coerced (some theft/crime) and some not, or whether every economic exchange is unforced, i.e. all exchanges are trades (probably not possible either, as crime will always exist) because the nature and kind of exchanges which actually occur is a separate concept from the government's policy not to interfere, i.e. the policy not to initiate force in the economic sphere which IS laissez-faire. 

Trade, sex, music, art, science, philosophy, sports, are all spheres of activity by sovereign individuals in which no proper government has any role to play whatever.

 

Crime, initiation of force, will always exist amid conduct in every sphere of activity because there will always be criminals.  Be careful though, the conduct constituting crime, although amid other activity, is not to be confused with the non-criminal activity.  Theft is not trade. Rape is not "consensual sexual activity". 

 

The concept laissez-faire is restricted to the policy of government towards its citizens, in particular, by common and Objectivist usage, in the economic sphere, the non-initiation of force.  This is a negative duty which in logic follows from its mandate to protect individual rights.  Laissez-faire DOES NOT mean a mandate for the government to literally NEVER DO ANYTHING.  This would be an abdication of the proper role of government which is to exercise the delegated authority to use retaliatory force in answer to initiation of force in any sphere.  Laissez-faire means "leave alone" ALL activity (economic) which does not involve the initiation of force which means EXACTLY the same thing as "DO NOT initiate physical force i.e. do not VIOLATE rights of individuals".  For laissez-faire to "exist" the government simply needs to leave alone, i.e. completely ignore all non-criminal activity in EVERY sphere of activity. Economic activity comes along for free.  This is a moral duty of the government, a "negative" duty, to refrain from perpetrating crimes on its citizens.

 

As a separate matter the role in protecting individual rights is a positive mandate on the government to protect individuals from each other and from foreign aggressors, its delegated authority to use retaliatory force in answer to the initiation of force.  An effective government will be one which is laissez-faire (NOT violate individual rights, this logically follows from governments primary purpose) as well as one which has good justice, crime prevention, and military systems (PROTECT individual rights, government's primary purpose).

 

 

Let us concretize this a little.

 

Consider two men trading.  This is not laissez-faire.  This is trade. This is voluntary action by two sovereign individuals. That is all it is and it has nothing to do whatever with proper government action/jurisdiction.  As far as the government is concerned (remember a proper government is not involved in social engineering, or fostering, or funding, or causing things, only protection of individual rights), this activity never happened, because it is literally NONE of its business.

 

Consider a cop with a gun, telling the men how to trade.  This is not laissez-faire; this is a crime being committed on the two men.

 

Consider a cop observing one man engaging in the initiation of force on another.  The cop intervenes with retaliatory force. THIS is the protection of individual rights. This is not an example of laissez-faire, but the exercise of proper government power to use retaliatory force.

 

 

Now, consider a cop seated nearby two men trading (recall the definition of trade... it does not include crime, i.e. the initiation of force). The cop peacefully continues to look for something for which his mandate from government would require his intervention.  He is blind to ANY non-criminal activity.  He abstains from violating individual rights, in particular abstains from violating economic freedom. 

THIS is laissez-faire.  Laissez-faire is NOTHING ELSE.

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I believe we are arguing across each other.

Laissez-faire is where rights are observed - that is what uncoerced, mutually consensual exchange means, in practice. It also means non-interference by the government. If rights are observed by individuals though, they are observed whether the individuals work for the government or otherwise. So the requirement of non-interference by the government is only to state explicitly what is already implied. It is stated explicitly because this feature, as you have said, sets it apart from other economic systems which are characterised by controls being imposed by the government.

I accept what you are saying that theft is not trade. I think the same way. I just think that without an effective justice system where the rights of parties are protected, the lines will be blurred between what is trade and what is crime. This in turn leads people to be unclear on what their rights are.

People who are unclear on their rights are more likely to behave aggressively or non-assertively towards each other. Laissez-faire depends on assertive exchanges, such exchanges only possible where rights and obligations of all individuals are routinely met and where meaningful consequence assertion can be applied when they are not. This depends on an effective justice system in my view.

I really do understand your point, though we disagree on prerequisites, I don't think the implications of our disagreement put us far apart from each other in terms of what we both want. We both value an effective justice system and we both value laissez-faire.

Edited by Jon Southall
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