At last your day comes. You are escorted into the courtroom and seated. At the appointed time, the bailiff says, "All rise." All rise, and the judge enters, sits, bangs his gavel, and says, "This court is now convened. The case before us is the State versus—"
And suddenly it hits you. It really is the State versus you. You were arrested by agents of the State: the State employs the SWAT team. The State also builds and staffs the jail. The State incarcerates you pending trial, the State sets bail, and the State informs the press. The State supplies the judge, the State supplies the prosecutor, the State supplies the courthouse, the State supplies the jury, the State supplies the police who present the evidence, and the State supplies the lawyer who pretends to defend you. If you’re found guilty, it will be the State who determines what happens to you. It really is you against the State.
But that’s not all. If you are declared innocent but the evidence shows that a crime has been committed, then the police will look incompetent for having spent time and money on a botched investigation. They will have to reopen the investigation and find someone else to accuse of the crime. At election time, the prosecutor will be open to charges of incompetence, and the judge will be open to accusations of being soft on crime. So they have every incentive to work together to find you guilty: the more criminals they lock up, the more they can claim they’re doing their jobs. If they lock up an innocent man and the guilty commits another crime, they can say, "Well, there are more criminals out there than we thought, and we need more money for more police, prosecutors, and judges." Their incentives push them to press for convictions, not to seek the truth.
Why does it work this way? Let me suggest that these perverse incentives are an unavoidable by-product of a top-down system in which the State is the ultimate authority, possessing the power to back up its decrees by coercion; or you could say it possesses ultimate coercive power and has the authority to use that power as it sees fit. More accurately, to the degree people control the power of the State, they have the means to do anything they please. Just as the legislative system allows some people to buy politicians’ votes on laws that benefit them at others’ expense, the judicial system allows some people to use the State’s monopoly of overt police violence against other people.
In the case of the judicial system, the plaintiff, whether a private citizen, as in liability suits, or the State itself, is attempting to get the adjudicator (judge or jury) to decide in his or its favor so that the agency of coercion will either extort money or other resources from the defendant, incarcerate him, or kill him. The defendant, naturally, is trying to convince the adjudicator not to do so, so he will hire lawyers who are skilled at swaying adjudicators. The verdict—whether just or unjust, based on truth or based on lies—will be what the adjudicator considers expedient. Once rendered, the decision is almost impossible to reverse. That being the case, the primary incentive for both sides is to get the adjudicator to rule in their favor, no matter what the truth is. Lies, bribes, wheedling, threats—if they work, they are part of the process. In a top-down system, might makes right—or at least it makes policy. If you want to know who really holds the power in such a system, look at who wins when there is conflict: they are, by definition, the powerful.
Not only are truth and justice secondary, so is the welfare of the victims of crimes the State prosecutes. For example, robbery victims are rarely compensated for their losses unless they institute a civil suit, in which case the same dynamic of persuasiveness over truth operates. Rapes also are frequently unreported: the victim knows she will have to relive the experience publicly in court, and even if her assailant is convicted, she will still have to bear the costs of counseling, medical care, and, in the case of pregnancy, childbearing and parenthood.
What, you ask, is the alternative? Let’s work backwards from the courtroom.
What if, when you walked into the courtroom to stand trial, not only was the judge himself unarmed, but he had no police force to protect him or back up his decisions? What if you and your friends, and your accuser and his friends, were the only ones armed?
Well, if we’re armed and the other guys are armed, why would we go to court? You would go to court because you’d rather talk than fight. If you’d rather fight than talk, you have no need of an alternative to the present system. Just make sure you can shoot the SWAT team (and their reinforcements ad infinitum) before it breaks into your house. If that sounds unrealistic, let’s assume it’s better to talk.
If the judge is unarmed, what is his function? How can he enforce his decisions? If he can’t enforce his decisions, what good is he? Remember, you’d rather talk than fight. You think you’re right. But your accuser—let’s say for now—honestly thinks he’s right, too. In this case, you’re both not so much going to court as asking the adjudicator to hear both sides, ask incisive questions, and get at the truth. You’re both hiring him for his wisdom, not because you think he’ll cheat the other guy.
The adjudicator won’t be there by virtue of fooling the public and winning an election. Rather, both you and your adversary will have looked at many candidates and checked out their abilities, and you both will have chosen him because you’re convinced he is able to uncover lies and errors, render just decisions, and suggest courses of action that bring about reconciliation between the disputants. Neither side will be willing to trust itself to someone who might treat it unfairly, so if one side proposes an adjudicator who is likely to be biased in its favor, the other side will simply reject him. The trial—it would actually be more like a meeting—will not even be convened until both sides have agreed on the adjudicator and agreed to be bound by his decision. And the choice process works both ways: no adjudicator will be willing to take a case involving people who might try to deceive him during the proceedings or treat him violently if he rules against them. So it behooves both you and your adversary to cultivate a reputation for peaceable dealings. And while the temptation to render biased decisions is always present, any adjudicator with a reputation for bias or even simple incompetence will likely be looking for another line of work before long.
Notice again how the incentives work in this system. The accuser has the incentive to cultivate a peaceable reputation and to tell the truth once the proceedings begin. If he is shown to be a liar, he will have a hard time next time around finding friends willing to defend him or an adjudicator willing to hear his case. The same is true for the defendant. The armed friends on both sides have the incentive to show themselves quick to listen, slow to speak, and slow to pull the trigger. The adjudicator has the incentive to cultivate a reputation for fairness, knowledge, and wisdom, including the wisdom to know when he doesn’t have the knowledge to handle a case; once the proceedings begin, he has incentive only to find the truth, render a just decision, and find ways for both sides to put the incident behind them and get on with life. How different this is from our present system!
And here’s perhaps the biggest bonus of all: if you win the case, you don’t have to pay the adjudicator. Taking the matter to adjudication is the last resort, not the first. If you’re going to take someone to court, you’ve got to be sure that you’ve got all your facts right, because if you lose, you not only don’t get what you wanted from the other party, you have to pay for the trial. And, of course, that lowers the risk that someone will take you to trial.
What if I don’t have a bunch of armed friends to protect me from the other guys? The most important aspect of this system is that it gives you the incentive to become the kind of person others will want to defend and to find people like you before you need them. No organization worth joining takes just anybody, and to the degree any group you want to join wants to both protect its own people and act justly, it will want to make sure that you are willing to protect others and to act justly on your own. Freedom begins with self-discipline; you will need to develop it and pursue relationships with others who desire it. The payoff is the knowledge that the others in the group have passed the same inspection and you can trust each other.
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