The official demonization of “anarchists” by State propagandizers continues on apace, in this instance by an agent of an “agency”-without-principals which intends to violently evict Occupy protesters from Portland parks this weekend. Meanwhile, a real-life “anarch” (leader of leaderlessness), Wendy McElroy, explores, at the Daily Anarchist, what an anarchist system of justice might look like, and in reply to a comment on her post writes:

At some point, you have to do a comparative assessment and choose the system that does it best rather than does it ‘right’…because there is no right. That’s the horror of violence. It sets the natural order so viciously out of whack that it may not be possible to ever return it to ‘right’. My ideal “just system” is 90% prevention so that you don’t have to deal with raped women, traumatized children, men killed for $10 in their wallets. Imagine a free market law enforcement industry that actually existed to prevent violence, that drew its customer salary from the efficiency with which it managed to prevent violence. What a revolution that would be! Oh Brave New World in which I wish to live.

I contributed the following comments (slightly edited) to the discussion in the comments section on Wendy’s post:

I’ve recently been thinking that anarchic justice should depend on “consensus” rather than “consent,” manifested in a common-law, customary-law kind of system. As John Hasnas has argued, such a system properly understood is free market law. Law is rarely based on consent. The thief caught shoplifting or committing more serious crimes presumably will only rarely “consent” to the consequences imposed by society. It should take a consensus of society to impose any restriction on liberty. Punishments, whether of the restitution or retribution / deterrence / incapacitation variety (and I think the limitations of a restitution-only paradigm are seen in the hypothetical murder of a homeless man with no family or friends to whom restitution for his “wrongful death” might be paid), should likewise be no harsher than a consensus of society approves. Consensus is the social embodiment of the Presumption of Innocence, which is fundamental to a free society. Consensus is only practical in small groups, which points the way to a society of Thomas Jefferson’s “ward republics” and to confederation along the lines of the Great Law of Peace of the Iroquois Confederacy, which operated by consensus.

. . .

It all depends on what the conventions are. Right now the conventions that prevail in society are very unlibertarian. Specifically, these conventions hold the text of a Constitution put together by men long dead for less than noble purposes 200 years ago to be binding on the living, and vulgarly and arbitrarily equate democracy with the will of the majority (even a bare majority of 51%). It seems the goal of libertarianism is precisely to change those conventions. Apparently in contrast to many posters here, I think the so-called Rule of Lenity is a convention at the heart of liberty. So is the Presumption of Innocence. So is the notion that “government” derives its just powers from the “consent of the governed,” but instead of speaking of the “consent of the governed” I’d speak of the “consensus of the self-governing.” If 95%+ of the people in a community agree that it is just to use force to prevent or punish murder that’s a pretty good indication that force is in fact justified to prevent or punish murder, and it’s pretty clear that in any event murder isn’t going to be tolerated by that community. On the other hand, if only 75% agree that it is just to use force to prevent or punish eating magic mushrooms that’s a pretty good indication that force is not justified to prevent or punish eating magic mushrooms, and a society which values consensus and applies societally the same presumption against violence that decent people generally apply as individuals will not use force to prevent or punish eating magic mushrooms, even if, hypothetically, 75% think such force would be justified and 95% think eating magic mushrooms is “immoral.”

. . .

Ideally, the so-called traditional common law, which John Hasnas illuminates as depoliticized law, reflects reason and natural law, and its evolution is likewise guided by reason and natural law. Each case is to be decided on the basis of Justice, informed by how such cases have been decided before.

. . .

I urge all anarchists to give Henry George a second look. Georgism represents a principle by which such claims [to land] may rest not only on force but on justice. I’m of the opinion that in an anarchic society “national defense” (i.e., defense not of a nation but defense from nations) will still be necessary, that such defense will necessarily be defense of a territory by those in the territory, and that Georgism would provide the natural means of funding such defense.

Our Enemy, the State, by Albert Jay Nock, whom I personally regard as my number one libertarian muse, is shot through with Georgism.

. . .

The Hasnas article on “The Depoliticization of Law” is also directly on point: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987829

. . .

Consensus, as I conceive it, is close to or identical with the very essence of anarchism, and of the “libertarian framework.” In the realm of collective action it whittles the use of force down to what Nietzsche called the “song of the necessary,” in the same diatribe in which he called the State the “coldest of all cold monsters.” Unless “we” all agree violence is necessary and justified, “we” don’t use violence.

. . .

I think Justice is most appropriately defined not positively but negatively, as “the absence of crime.” All the things we do to try to fight or deter or somehow provide “satisfaction” for crime are then seen to be “justice” only in a secondary and derivative sense. The criminal defense attorney serves Justice more directly than the prosecutor.

Before this gets farther, the underlying case was the charge of murdering an officer. Subsequent evidence –official police investigation and all witnesses– state the act was unintentional homicide in the act of self defense. The officer had a history of violence, and first (without provocation or cause) chased one brother down and beat him with an axe-handle. Then the officer went after and started to beat the other brother with the axe-handle; initiating a 5 minute tussle in which the officer’s gun was discharged.

The trial court Judge’s disrespect was for the prosecutor who made an involuntary manslaughter plea offer, then denied making it. When confronted with an audio tape of the offer, the prosecutor retracted it for voluntary manslaughter. In addition, the prosecutor flouted the court by refusing to attend the plea hearing, etcetera ….There is far more underneath all this –and far more background too– but the Virgin Islands Daily News has a splendid reporter who gives a great summary of this series.

The trial judge (Leon Kendall, now retired) issued an order enforcing the original plea agreement (to involuntary manslaughter). The lying prosecutor (Jesse Bethel) filed a writ of mandamus and the higher court granted it, vacating Kendall’s order. The defendants then tried to plea to voluntary manslaughter, but Kendall rejected the plea for lack of a factual basis, and published the “inflammatory” opinion that later got him found in contempt by the higher court. A month later, one of the defendants was found shot dead in the street. (Remember, he killed a cop.) His brother stood trial before a different judge and was acquitted of all charges.

Judge Kendall appears to be one judge who actually deserves to be called “Honorable”:

//www.youtube.com/watch?v=g28pOEo0OKE

And some cops aren’t, like this local cop who shot and killed an unarmed man who’d led police on a pursuit before crashing into a building:

The chase ended after ten minutes when Bledsoe crashed his truck into the main building at Faubian Plumbing, Heating & A/C Inc. The business located in the 700-block of E. Lincoln Ave. saw nearly $10,000 in damage.

Police say Bledsoe tried to dislodge his truck from the building by flooring the accelerator as police surrounded him. After refusing to stop, Bledsoe was shot once in the neck.

(Compare the case of Tyrus Coleman.)

Just being a cop, or a fire fighter, (or a lawyer, or a judge) doesn’t mean squat:

A federal judge’s order to have a court-appointed monitor oversee the employment practices of the New York Fire Department, “a stubborn bastion of white male privilege,” is entirely justified.

Judge Nicholas Garaufis of Federal District Court ruled on Wednesday that the department’s hiring practices and racially biased tests systematically excluded blacks from its ranks. As a result, the department is about 3 percent black in a city where roughly a quarter of the population is black.

Under the ruling, a monitor will have to be installed to ensure that the department’s hiring practices comply with federal civil rights law. The move is necessary given the nearly 40 years of illegal discrimination that has persisted under six New York City mayors.

. . .

It is well past time that New York City was forced to correct its failure. Mayor Michael Bloomberg, however, has vowed to appeal the decision. “The judge was not elected to run the city,” he said, “and you can rest assured that we’ll be in court for a long time.”

I am swearing off all media today because I cannot stand this endless attention to 9/11 and the persistent glorification of police and fire and EMT, and whatever other state-employed professionals are deemed to be heroes because they represent the state as our rescuer, benefactor, and savior.

First, I absolutely dislike the term “first responder” because it is a term of veneration with no basis other than these folks are employed by the state in hallowed roles. My friend, who is a retired police officer, mentioned he had been out on some police and fire discussion boards making the unpopular argument that police officers, firemen, and all other so-called first responders, are not heroes. We were in agreement that they are not heroes just because they do their job, whatever that job entails. They are not heroes because they may have some element of danger in their work – just like an accountant who balances the book is not a hero, and a lumberjack who drops a tree is not a hero. Yet each time a first responder dies, the local – and sometimes national – media reminds us over and over of the passing individual’s greatness and service to his country. Are there not a lot of great accountants and lumberjacks who pass on as well?

My deceased father, a career firefighter, also despised the fixation with propping up police and fire personnel as the demigods of public security and welfare. He disliked the media exaltation and he refused to attend a mass funeral of one of his own with lines of fire trucks and police cars, with lights ablaze, blocking and parading down the streets to broadcast that a hero has passed. He chose to quietly visit the funeral parlor instead.

Mark Draughn:

First of all, remember that the number of Americans who died on 9/11 is much larger than the three thousand people who died in the World Trade Center, in the Pentagon, and on the hijacked airplanes. I don’t have an exact figure, but the true death toll for September 11, 2001, is much closer to ten thousand people.

That’s not some conspiracy theory, it’s mortality statistics. There are about 300 million people in the United States, and a small percentage of them die every day. If 9/11 was otherwise a typical day, it means that in addition to the 3000 deaths from terrorism, another 7000 Americans passed away for other reasons.

I can’t get it out of my head that the families of some of those people have got to feel a bit…cheated, maybe? Imagine, for example, the wife of some liquor store clerk who was shot to death in a robbery on the night of September 10th, 2001. She wakes up the next morning for one of the worst days of her life, only to discover that nobody seems to care.

I don’t want to be all holier-than-thou about this, but just this once, when we think of the people who died on 9/11, let’s try to think of all the people who died on 9/11.

David Gross:

Ten years ago, Americans got hit good and hard with the sort of death and destruction they so enjoy being on the other end of, and the United States became as noisy and menacing as a country-sized dropped beehive.

Some of the seeds of my future war tax resistance were planted then, in my disgust with the bloodthirsty, know-nothing jingoism and my intuitions about what it would lead to.

. . .

I also tried to imagine how a saner, wiser, more courageous world might have responded:

. . .

CONGRESS PASSES RESOLUTION CONDEMNING BOMBINGS OF HIROSHIMA, NAGASAKI

Washington (AP) — Congress today passed a resolution apologizing for the atomic bombings of the Japanese cities of Hiroshima and Nagasaki during World War II.

“It is the understanding of this Congress,” the resolution read, “that there is no justification for the wholesale murder of civilians — not to discourage an imperialist enemy, no matter how aggressive or irrational — not to prevent the loss of life of soldiers on the battlefield — not even to win a war that might be otherwise lost.

“To slaughter thousands of innocents in order to horrify a nation into surrender can never be a victory for Good. We recognize this now as we have not recognized this before.

“As we prepare for battle against the evil of terrorism, we must as part of this preparation purify our hearts, atone for our injustices, and be able to go forward with confidence that we are in the right. As our chaplain said, ‘we ask not that God be with us, but that we be always with God.’

“We do solemnly and gravely apologize for the great evil this country committed when we murdered and maimed hundreds of thousands of people in the atomic bombings of Hiroshima and Nagasaki. We condemn the bombing of civilian areas to terrorize a populace or a nation.”

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

The Indiana Supreme Court’s decision in Mr. Coleman’s case came less than a week after that court rendered its infamous decision in Barnes, which purports to abrogate the right of the people to reasonably resist unlawful police entry into their homes. I lament the fact that Barnes has gotten all the attention and public vilification, while the court’s disposal of Coleman has gotten none, even though both cases equally exude the pernicious implication that only police officers are entitled to use force to defend themselves or others and that the only allowable recourse of a man facing armed and dangerous men who are in the act of invading his property is to call the police.

In the wake of the political fallout over Barnes the Indiana Attorney General has put on his white hat and joined the chorus condemning Barnes:

I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week.

Here’s my response to that, borrowing from Eric Turkewitz: “Go shit in your white hat and pull it down over your ears.” Your office didn’t have to petition the Indiana Supreme Court for transfer after the Indiana Court of Appeals rendered its eminently reasonable decision that would have freed Tyrus Coleman — an innocent man — on the grounds of collateral estoppel, but it did.

And speaking of going above and beyond the call of duty, here are the principal considerations which normally govern the Indiana Supreme Court’s decision whether to grant transfer:

(1)     Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2)    Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3)    Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4)    Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5)    Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6)    Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

You will search the Indiana Supreme Court’s published opinion in Coleman in vain for any new explication of the law of collateral estoppel, any explanation of how the Indiana Court of Appeals’ decision had “departed from accepted law or practice” (let alone “significantly”), or any hint of the above-listed “considerations” which normally govern whether the Indiana Supreme Court grants transfer. Even though the first jury in Coleman’s case had acquitted him of murder and hung on the attempted murder charge (which in a just world and a just legal system would establish reasonable doubt as to Mr. Coleman’s guilt on both charges), and even though there was nothing contrary to established law in the Court of Appeals’ decision, the “Justices” on the Indiana Supreme Court chose to condemn Mr. Coleman to 45 years in prison for doing something that I believe with every fiber of my being was completely justified.

[T]here is a rule older and superior to that of the Constitution.  Many Americans do not believe that to be the case.  There is a philosophical divide in America, with the Justices of the Indiana court, and their Constitution, on one side, and a different law on the other.

One American called it “the Laws of Nature and Nature’s God”.

One Englishman called it “the Law of the Jungle”. [Link added.]

In the recently published decision that Patrick is referring to, Barnes v. State, a majority of the Indiana Supreme Court holds that “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

The dissenters describe the majority as having “abrogated” this right. But rights can’t be “abrogated.” They can only be ignored and violated.

There is no right more fundamental than the right to defend one’s self, family, and home. Verily, from this right derives whatever justification, if any, “the law” itself might have. Yet the Indiana Supreme Court in Barnes cites with apparent approval “legal scholarship” which “[i]n the 1920s . . . began criticizing” the right to resist unlawful police action “as valuing individual liberty over physical security of the officers.” But as a commenter at the Volokh Conspiracy trenchantly observes: “There is a reason why officer safety is not included in the Bill of Rights, and that is because they are part of the danger being protected against.”

In actuality, though, “the law” and the State derived from the Constitution doesn’t exist “to protect and serve.” Rather, it exists to extort and exploit, and whatever protecting it might do is secondary and incidental to that overarching purpose. To see that this is so, compare what the State has done to this man who honorably and courageously defended himself and his son and friends from two armed and dangerous men on his own property, with what the State didn’t do to this cowardly police officer who gunned down a man on a city street without justification.

If “the law” fails to recognize the right of a man to defend himself and his family and friends on his own property, then it is good for nothing except to be thrown out and trampled underfoot.