Monday, November 6, 2006

Statist "justice" : throw the die part 2

The market anarchist solution to justice is primarily concerned with consumer demand as the drive for accountability, due to the incentive system involved. The general thought in market anarchist circles is that establishing accountability will make everything slowly better and more adapted to people's values. This is, of course, correct, and restoring accountability to the justice system would be a tremendous improvement. We would see less abuse, limit times for trials, much lower costs, and a fairer system all around.

Would market anarchist justice be made too complicated by a multiplicity of codes? Not at all. In fact, since every conflict would ideally be regulated by one single code negotiated by the two agencies involved, the situation would not be much more complicated than what we have today. The only complication would be in cases involving someone who belongs to no agency or who belongs to agency which has not yet been to the negociation table. Procedures would obviously be developed to deal with these specific kinds of cases.

Now I'd like to go beyond what market anarchist theory has to say on the subject, and look at specific implementations of justice.

First, let's look at the vengeance aspect. Statist justice is based on retribution, on inflicting punishment, instead of restoration. People celebrate the punishment of an assumed guilty party, while gaining nothing at all from it except a thirst for vengeance which is really fabricated by the way the state has perverted justice. The state of the same society after the trial is worse than it was before it, inevitably.

Restorative justice (also called conciliatory justice), on the contrary, aims to ensure that society is, if not better off from the whole procedure, at least as good as it was before it. There are three main parts to this idea:

1. Arbitration between the victim and the offender is strongly encouraged, or otherwise consensual methods, with judge or jury-based trials used only when all other methods fail.
2. The offender must compensate for the damages he inflicted to the victim. If financial restitution is not possible, the victim and the offender must agree on an equivalent.
3. Reintegration instead of isolation (jail): Inscribing the process within the context of the greater society, encouraging rehabiliation by reconnecting the offender to the social context instead of isolating him from that context.

That's the first part of the puzzle. Another part of the puzzle is the concept of Informed Consent, which I discussed extensively before. Restorative justice is an excellent concept, although best applied to a smaller scale. Informed Consent, on the other hand, is a more general concept and is applicable at any scale. We already know that agencies would function on the basis of arbitration, i.e. they would choose the courts that would receive their cases in this or that context. But Informed Consent would be the way by which the decision-making process (the actual trial) would take place, involving the arbitrators, experts, and representatives from both parties.

This structure addresses both the enormous power of judges, and the confrontational nature of the system. As a corollary, the issue of wealth becomes less important, as conviction or lack thereof depends no longer on the persuasion and credibility of a lawyer, but rather on a consensus. Even if one party is not present, there will still be arbitrators and experts there to take up some of his side of the story, although obviously they don't have as much interest in defending him as he would himself. It would also give a more impartial, or at least multi-faceted, approach to the truth.

Finally, a form of hierarchical debate could be an excellent tool in doing the ground work for a case- deal with all the procedures that come before it, as well as prepare for the dialogue by setting the agenda and the arguments from all sides on each point.

What about appeals? Well, here's how I think it would happen. There wouldn't be any appeals at first, and people would be dissatisfied with some decisions, especially if there is no mediation or restitution (which would definitely lower the rate of dissatisfaction). The most reliable courts would naturally seek to leverage this reliability advantage over their competition, and would put themselves under an oversight system, and publicize this fact. The oversight system would check all cases brought to that court, and check for technical or judiciary errors. When errors are found, and the guilty party wishes to appeal, it would then nullify the decision of that court and make its own judgment (using whatever process is desired).

This oversight would be a competitive advantage, since all other things being equal a system with appeals is more desirable for consumers than a system without appeals. So more courts would want to have such a system. It might not actually happen like that, but this is a natural scenario. The point is that there are situations where there is an incentive even for the courts themselves to have appeals put in place for their customers. This is something that opponents of Market Anarchy don't seem to understand: as long as there's a demand for something, producers will be interested in providing it.

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