Opinion from a Libertarian ViewPoint

Doug Casey on the Failures of the Justice System and a Viable Solution

Posted by M. C. on January 7, 2022

But in practice, it’s an interrogation process by which lawyers try to ensure they get a jury that will believe whatever they tell them. This usually means that anyone exhibiting the least bit of independent thinking or is prone to value justice over law enforcement will get removed and never serve on a jury.

by Doug Casey

International Man: What is the role of a justice system in a society, and what should the State have to do with it?

Doug Casey: In my view, what really holds a society together isn’t the laws enacted by legislatures or dictators, but peer pressure, social opprobrium, and moral approbation. In general, society is pretty self-regulating. It’s why people pay their bills at restaurants even though there’s not a cop at the door. Criminals are the exception, not the rule—although, it must be said, they naturally gravitate towards the government.

When somebody commits a crime, there’s a trial to determine what harm has been done, who should be compensated, and so forth. Courts determine these things. But I would argue that the state is not a necessary part of any of this. Society, like markets, tends to be self-ordering.

With a minimal “night watchman” sort of state like that described by Ayn Rand, the proper role of government is simply to defend you from force and fraud. This implies an army to defend you from force external to your society, a police force to defend you from force within your society, and a court system to allow the adjudication of disputes without resorting to force.

I could live in a society like that—it would be a vast improvement over what we have now. A proper court system, with either arbitrators or judges and juries system, would be part of it. But I’d go on to argue that juries and courts should be privatized.

International Man: What would a privatized justice system look like? Would it have juries?

Doug Casey: There might be either arbitrators, or juries, or both. The jury should be composed of independent thinkers who aren’t easily swayed by rhetoric or pressured by groupthink. Today, however, they’re just random people who aren’t clever enough to avoid jury duty.

In theory, juries can counter the tremendous power of judges. Judges today are either elected or appointed. If elected, they have to campaign like any other politician and are subject to the same perverse incentives any other politician is. If they are appointed, it can be even worse. Appointees are often just collecting political favors. While they’re allegedly more independent, in many ways, they’re even less accountable.

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