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Why I Favor Limited Government, Part 3

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There are two important points that one should recognize about the anarchy paradigm.

First, under anarchy, there would no longer be a United States of America, and no longer would there be any U.S. citizens. There also would no longer be any states. All of those governmental structures, along with their long-established judicial systems, which are based on centuries of legal development and evolution, would suddenly be gone, automatically dismantled upon adoption of the anarchy paradigm. There would also be, needless to say, no more state courts and no more federal courts, including the federal courts of appeals and the U.S. Supreme Court. They would all become nothing more than historical curiosities.

What would be left under anarchy would be an enormous geographic territory that previously constituted the United States of America. Let’s call it the North American Geographic Territory (NAGT).

Second, under anarchy everyone — and I do mean everyone — would have the right to compete in the provision of law-enforcement and judicial services. Equally important, each competing service would have the right to enforce its rulings, holdings, and judgments through the use of force, just as the U.S. federal courts and various state courts have today.

Perhaps most important, each entity would have the right to define and establish its own jurisdiction over crimes committed by or against its members or within its zone of operations.

Recall that in part one of this series, I pointed out that while most people in life are peaceful in nature, there will always be a small percentage of people who violate the rights of others in the form of murder, rape, assault, theft, burglary, robbery, fraud, and the like. In part one, I hypothesized that that peaceful percentage of people constituted about 98 percent of the populace and the violent percentage about 2 percent.

As I also pointed out, under the right of self-defense, when the 2 percent commit a crime, the 98 percent have the right to forcibly bring them to justice and, if convicted, punish them through incarceration, fine, restitution, or other means. At both the federal and state levels, there is an established procedure for accomplishing that, which incorporates judicial principles that stretch back through centuries of American and British legal development. For example, at the federal level, a magistrate issues a warrant of arrest for the person who is accused of a crime, which must be based on a sworn statement by a law-enforcement officer establishing what the law calls “probable cause” that the accused really did commit the crime. The same procedure is used at the state level with state judges and sheriff’s departments.

Under limited government, of course, that’s not the end of the matter. There is still the problem of establishing whether the person really did commit the crime. That’s what a trial is all about. Here in the United States, no matter how convinced people are of the guilt of an accused, he is nonetheless guaranteed procedural protections that stretch all the way back to Magna Carta in the year 1215, many of which are set forth in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.

Freedom, not justice

Now, I repeat: Under anarchy, everyone has the right to compete in the provision of law-enforcement services and judicial services. When I say “everyone,” I mean everyone.

Why is that important? Because under anarchy, not only do the 98 percent have the right to establish their own police forces and judicial systems in competition against everyone else, so do the 2 percent! That is, there is nothing in anarchy that prevents the 2 percent from competing by establishing their own law-enforcement agencies and judicial systems and, equally important, determining the rules and procedures for determining jurisdiction, guilt, and the conditions under which force will be employed to enforce rulings and judgments.

Anarchists respond by saying that that is not something that should concern people because under principles of competition and the free market, the bad police forces and judicial systems will be run out of business for lack of customers and support, much as what happens in the free-market production of computers and restaurants. If some judicial system is being run in a crooked, corrupt manner, anarchists say, it won’t last for long in a competitive market.

But first things first. The preliminary issue is not whether the 2 percent will succeed in a free market. The preliminary issue is whether under anarchy they have the right to compete. And the fact is that they do. Everyone has the right to compete under anarchy, whether he is able to succeed or not. Under anarchy, murderers, robbers, rapists, and thieves — or, more accurately, people who are going to murder, rob, or steal at some time in the future — have the right to compete in the marketplace of law enforcement and judicial services. Everyone, including the 2 percent, has the right to set up his own police force, judicial system, rules and procedures for determining guilt, rules on jurisdiction, and rules on when force can be employed against others.

Keep in mind, after all, that no one can predict with any degree of certainty who exactly are going to be the murderers, rapists, and robbers in a society. Keep in mind, also, that on the day anarchy is adopted, all the state and federal penitentiaries are dismantled and all the convicted felons, including the convicted serial killers, would be released, all of whom would then be free to compete by establishing their own law-enforcement agencies and their own judicial systems.

Would the systems rendering bad justice go out of business owing to a lack of customers or to social ostracism, as anarchists assert? Actually, given human nature, it’s a virtual certainty that the exact opposite will happen. The crooked and corrupt judicial systems will be doing gangbuster business while entities that are rendering justice and fairness are the ones that are likely to falter in the competitive marketplace.

One of the most famous and successful criminal-defense lawyers in U.S. history, a Texas lawyer named Percy Foreman, who is now deceased, explained the reason for this phenomenon in a very succinct way: “My clients don’t want justice; they want freedom.”

Most people — i.e., the 98 percent — have the general desire to have a fair and just judicial system. That’s why we have the type of judicial system that exists in the United States today, one that aims to punish the guilty but with built-in procedural mechanisms to diminish the chances that innocent people are convicted and punished.

On the other hand, the 2 percent have little interest in a fair and just judicial system. As Foreman pointed out, when they’re caught, the last thing they want is justice. They only want freedom or at least leniency. That’s why they secure the best lawyer they can. That’s why they want their lawyer to search for every technicality that can secure their release, such as the suppression of evidence as a result of an illegal search. That’s why they choose the most sympathetic jury. When caught, the 2 percent want freedom, not justice.

But there is something else to keep in mind here: The principle enunciated by Foreman applies to the 98 percent too! Or to be more precise, it applies to those people within the 98 percent who are accused of crimes. At the moment someone within the 98 percent is accused of a crime, he goes from the group that favors a fair and just judicial system to one that gives him the best chance to avoid being convicted. Like the traditional bad guy — e.g., the serial killer — the last thing that the wife who has just killed her abusive husband wants is justice. At that moment, she only wants freedom and wants her lawyer to take advantage of every opportunity to secure her freedom.

Therefore, I submit that the judicial entities that would have lots of customers under anarchy would not be the ones that are dispensing justice in an even-handed manner but rather the ones that are dispensing freedom and leniency. Ask yourself: If you were accused of a crime, rightly or wrongly, which judicial system would you prefer — the one dispensing justice or the one dispensing freedom?

There is another major problem with respect to crimes that arises under anarchy: the fact that each person not only has the right to compete in the provision of judicial services but also has the right to determine the judicial procedures that are going to be used to determine whether he really is guilty of having committed the crime.

As I previously pointed out, here in the United States we have judicial systems at both the federal and state levels that incorporate procedures that go back centuries into British jurisprudence. They include the rights and guarantees formulated in the Constitution and the Bill of Rights as well as others: trial by jury; right to bail; protections against illegal searches and seizures; a prohibition on cruel and unusual punishments; a presumption of innocence; grand-jury indictments; the right to confront and cross-examine witnesses; the right to remain silent or to testify in one’s own behalf; and a right to an attorney to argue on one’s behalf.

Nothing in anarchy requires any judicial entity to incorporate any of those principles into its judicial system. They might, but they also might not. If some people are sick and tired of what they consider are those old “technicalities” that used to exist under the Constitution (which, of course, would be gone under anarchy) and that were supposedly used to coddle criminals, they would be free to establish judicial systems that rejected any and all of those judicial principles. They would, for example, be free to establish systems that rely on tribunals rather than juries, a presumption of guilt, tortured confessions, and hearsay. They also would even be free to prohibit accused criminals from employing lawyers to defend themselves.

Under anarchy each competing entity would be free to establish its own procedures for determining people’s guilt. In the extreme case, there would be nothing to preclude a person from establishing a judicial system in which he himself serves as judge, jury, and prosecutor. Anarchists would say that that person’s judicial system wouldn’t last for long in a competitive system and that he would be socially ostracized for having a judicial system that is based on clear ethical conflicts of interest. But that might not matter much to a person who has just murdered someone and who wants to remain free.

Foreign “competition”

Under anarchy, there is another big problem that arises with respect to crimes — open borders or, to be more exact, no borders at all, because there would be no more United States of America, no more states, and no more counties. Remember: Everyone has the right to compete under anarchy. That includes not only people who used to be American citizens (including former U.S. officials who used to run the “judicial” system at Guantanamo Bay) but also people and governments from around the world. Keep in mind that although the American people will have chosen to dismantle their governmental structures in favor of anarchy, foreign countries would not necessarily choose to do likewise. While there would no longer be a United States of America under anarchy, there would still be governments in countries like North Korea, China, Russia, Iran, Mexico, Vietnam, and Egypt. Under anarchy, they would all have the right to come to the NAGT and establish communities with police forces and judicial systems in competition with all the others.

No, I’m not raising the prospect of a military invasion of the North American Geographic Territory — that is an entirely different problem under anarchy. I’m talking about the right to peacefully compete under anarchy in the provision of police and judicial services.

Let’s assume, for example, that China decides that it wants to compete by providing a police force and judicial system in the NAGT. Representatives of the Chinese government travel to the NAGT and peacefully purchase large tracts of land with billions of dollars of tax monies that have been extracted from Chinese citizens. The Chinese authorities then establish a chain of settlements across the NAGT, each one populated by 100,000 Chinese citizens as well as tens of thousands of Chinese troops to serve as police and to enforce judicial rulings.

The same for North Korea, Iran, Cuba, and others. Each of them establishes the same type of judicial system that they have in their respective countries. The Iranian authorities establish their system based on sharia law. The Chinese system is based on secret detentions, secret courts, and secret evidence. In the North Korean systems, the state wields the full authority to do whatever it wants to accused criminals, with defense lawyers being illegal. The Cuban system is based on a presumption of guilt and the use of hearsay evidence and evidence acquired by torture to convict people.

Upon settling in the NAGT, the head of the North Korean delegation issues the following public statement: “Here are the rules and procedures for our system, all of which will be enforced through the use of force by our soldiers, our policemen, and our intelligence units, just as they are back in our home country. Anyone who violates any of our rules and regulations will experience the full deployment of force against him in order to bring him to justice and, upon conviction, to ensure that the appropriate punishment is meted out to him. Anyone caught committing a crime, including former citizens of what once constituted the United States of America, against any of our members or anywhere within our jurisdiction will be dealt with harshly. There will be no compromises and no appeals from judgments and rulings of our trial tribunals.”

One day a North Korean woman is raped and accuses a young man who is a member of the Minnesota Defense League (MDL) of the crime. Agents of the North Korean Defense League (NKDL) sneak into the MDL territory, kidnap the man, and bring him back to the North Korean zone. He is quickly put on trial, convicted, and sentenced to die within 24 hours.

Upon hearing of this, the head of the MDL heads over to the North Korean zone and meets with the head of the NKDL. The MDL head explains that the young man has a perfect alibi, with three people ready to testify that he was with them at the time of the crime. He also explains that the NKDL’s kidnapping of the man was illegal under the rules of the MDL and, therefore, that the man must be released immediately.

The North Korean official politely explains that the young man raised the kidnapping issue at his trial and that the tribunal judge rejected its validity. It’s also too late to bring up the alibi witnesses, he explains, because the trial is already over. Anyway, he says, the North Korean woman definitely identified the young man as the rapist and, therefore, the alibi witnesses are clearly lying. The MDL official is informed that the young man is going to be executed at dawn.

That evening, the entire 100-man enforcement arm of the MDL appears at the front gate of the NKDL and demands the immediate release of their member. They encounter 10,000 fully armed North Korean soldiers.

Later that night, a young North Korean man is arrested within the MDL zone on suspicion of armed robbery. The head of the MDL sends a message to his counterpart at the North Korea zone stating that he is amenable to a trade of the two young men. The North Korean official politely declines the offer. Within an hour, 8,000 North Korean soldiers march to the front gate of the MDL where they are confronted by the MDL’s entire 100-man MDL enforcement arm. A North Korean general says to the head of the MDL law-enforcement unit, “Release our member or experience the full force of our 8,000-man law-enforcement unit.”

We will examine the possible outcomes of these two anarchy situations and others like them, not only in criminal cases but also in civil cases, in part 4.

This article was originally published in the May 2016 edition of Future of Freedom.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.