I think you’re basically right about the jury. I might quibble slightly with this: “Moreover, a jury’s presumed right to judge the justice of the law may also be irrelevant. In a voluntary society, the ‘laws’ being enforced would either protect person and property from aggression or be a matter defined by contract. In this context, for a jury to pass judgment on the propriety of the law would be akin to allowing them to pass judgment on the propriety of voluntary interaction itself.”

In a “government” of “laws” rather than “men” (i.e., legislators and other law-makers and “rulers”), the “jury” or “judges” would still need to “determine the law and the facts” (i.e., what Justice requires) in the case before them. This determination should presumably be informed by how similar cases have been decided in the past. The real value of a “jury” of 12 is in its numbers and in the requirement that they be unanimous in convicting a defendant of a crime “beyond a reasonable doubt” before depriving him of liberty. Most people accused of a crime would want this protection rather than having their case decided by a fewer number of judges, and it seems that a society which valued liberty more than our own would be hard-pressed to justify denying such traditional protection to defendants. Of course, the number 12 is not inscribed in the natural law, and how a free society might go about forming such juries to decide cases remains an interesting question.

. . .

I like your [commenter HRearden’s] idea of a pool of professional jurors / judges from which juries could be formed. (It would be good to eliminate the distinction between judges and jurors. The selected jurors could choose from among their number a “foreperson” to also preside over the trial and act as “judge.” The jurors could themselves rule on such questions like the admissibility of evidence.) This would of course get around the problem of impressing into service randomly selected individuals for little or no pay who may or may not be qualified to sit in judgment over others. How the jurors voted in previous cases would presumably be available to the litigants and eliminate a lot of the guesswork that is now inherent in the voir dire crapshoot. You could have juries of 3 or 12 or any number in between (or more than 12?) depending on the seriousness of the case.

. . .

I’m actually okay with the idea of a conviction despite one lone holdout voting to acquit. [On second thought, I’m only okay with the idea of a re-trial in this circumstance, not a conviction.] Two (or more) holdouts, on the other hand, is almost by definition a pretty clear indication that their doubt is “reasonable.” By the way, this is one area where our current system of justice is a complete farce and contradicts the constitutional principles on which it’s supposed to be based. If 10 jurors vote to convict and 2 vote to acquit, that’s not an acquittal but a hung jury, and the defendant can be tried again, in spite of the constitutional prohibition against Double Jeopardy. Hell, if 11 jurors vote to acquit and 1 votes to convict, it’s a hung jury and the defendant can be tried again.

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.

Common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature. Epictetus, the Stoic, urged men to defy tryants in such a way as to cast doubt on the necessity of government itself. “If the government directed them to do something that their reason opposed, they were to defy the government. If it told them to do what their reason would have told them to do anyway, they did not need a government.” As Lysander Spooner pointed out, “all legislation is an absurdity, a usurpation, and a crime.” Just as we do not require a State to dictate what is right or wrong in growing food, manufacturing textiles, or in steel-making, we do not need a government to dictate standards and procedures in any field of endeavor. “In spite of the legislature, the snow will fall when the sun is in Capricorn, and the flowers will bloom when it is in Cancer.”

. . .

It is a fact of human nature that the only person who can think with your brain is you. neither can a person be compelled to do anything against his or her will, for each person is ultimately responsible for his or her own actions. Governments try to terrorize individuals into submitting to tyranny by grabbing their bodies as hostages, trying to destroy their spirits. This strategy is not successful against the person who harbors the Stoic attitude toward life, and who refuses to allow pain to disturb the equanimity of his or her mind, and the exercise of reason. A government might destroy one’s body or property, but it cannot injure one’s philosophy of life. Voluntaryists share with the Stoics the belief that their ideas will not necessarily change the world, nevertheless, some of them may be inclined—like the Stoics—to become martyrs, when necessary. They would rather suffer death or harm than lose their integrity because their integrity is worth more to them than their existence.

Gene Callahan, who in the words of a critic is “apparently a former libertarian turned communitarian,” in a comment on Roderick’s post answers the cartoon’s question thusly: “Then some murder would be easier, and some murder harder.”

Roderick replies to Gene: “Killing a mindless collection of cells isn’t murder. And killing a person in self-defense isn’t murder.”

I replied to Roderick:

A one-day old baby is pretty mindless too, and it is not viable independently of external care and support, but killing it would be immoral. “Self-defense” against a child in the womb would apply only in cases of rape, where the mother isn’t responsible for the presence of the child within her body. A woman who engages in consensual sex and becomes pregnant is responsible for the presence of the child within her body, even if she uses birth control and the birth control fails. But since it would be unjust to prohibit abortion in cases of rape, and since rape is often very difficult to prove, and we don’t want to create a powerful motivation for false allegations of rape or force women who have been raped to make that allegation to “authorities,” for pragmatic reasons this necessary exception should be allowed to swallow and preempt any rule prohibiting abortion during the first trimester. And this rationale for not criminalizing abortion but limiting it to the first trimester (a woman who has been raped can be presumed to know that she was raped and to discover her pregnancy and to make a decision about whether to have an abortion within 12 weeks after the rape) rests on far more principled grounds than the currently extant “viability” rationale, which is a completely arbitrary line.

I outlined the above position at more length in an old post on this blog titled “Does the killer of Tiller the killer deserve to be killed?”.

Yesterday a federal district court issued a ruling granting in part and denying in part Planned Parenthood of Indiana’s motion for a preliminary injunction enjoining certain provisions of a new law enacted by the Indiana legislature:

U.S. District Judge Tanya Walton Pratt’s ruling Friday blocked parts of a tough new abortion law and granted Planned Parenthood of Indiana’s request for an injunction on the state’s move to defund the organization. The decision sides with federal officials who said states cannot restrict Medicaid recipients’ freedom to choose their health care provider or disqualify Medicaid providers merely because they also offer abortions.

. . .

Pratt’s ruling also addressed other provisions in Indiana’s law that require doctors to tell women seeking abortions that a fetus can feel pain at or before 20 weeks gestation and that “human physical life” begins at conception.

The judge found that because Planned Parenthood only provides first-trimester abortions, requiring its doctors to address fetal pain at or before 20 weeks gestation may be “false, misleading and irrelevant.” She issued a preliminary injunction on that part of the law as applied to Planned Parenthood only.

However, Pratt denied Planned Parenthood’s request to block the measure requiring doctors to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm.”

“The inclusion of the biology-based word ‘physical’ is significant, narrowing this statement to biological characteristics,” she wrote in her ruling. “When the statement is read as a whole, it does not require a physician to address whether the embryo or fetus is a ‘human life’ in the metaphysical sense.”

As much as I despise Planned Parenthood as an archly-hypocritical enemy of choice, I think that Judge Pratt in her ruling pretty much gets it right. If anything, I think that the provision of the new law requiring abortion providers to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm” is pretty sketchy from the standpoint of the First Amendment (even though I believe it is a scientific fact that life begins at conception), and that Judge Pratt might be justified in ultimately enjoining this provision too.

On the “defunding” issue, I concur with Wendy McElroy:

The consistent anti-abortionist must grant the same right of conscience in tax matters to others as he claims for himself. Otherwise, he is not arguing for conscience but for a special interest: his own. Indeed, the abortion objector is not arguing for rights at all. By their very nature, rights are universal; they apply to all people or to none. Unless the right of conscience in taxation is applied universally, the anti-abortionist is demanding a privilege. For most anti-abortionists, it is not even a privilege they are willing to extend to their anti-war counterparts who reject “the military tax.”

A universal right of conscience would revolutionize taxation by making payments virtually voluntary. It would immediately and radically limit the spending and size of government at all levels. Government would be forced to offer only the services that the public values. Now, that would be a glorious thing to see.

As far as I’m concerned, the “pro-life” Republicans in the Indiana legislature who passed this law and their “pro-life” cheerleaders are getting just what they deserve, for cravenly or cynically removing from the law the one provision in the original bill (after it had been passed by both houses of the legislature) that might have actually saved the lives of both mothers and babies: the provision that would have required abortion providers to inform women considering abortion about the scientific evidence linking induced abortion with increased breast cancer risk.

Just look at why the “fetal pain” provision got preliminarily enjoined:

The Commissioner presents evidence in the form of articles, affidavits, declarations, and reports relating to the present research and growing science of fetal pain perception. The Commissioner principally argues that in order to be “objective scientific information” as defined by the statute and therefore truthful and non-misleading, the statement need not be the ‘majority’ view within the scientific community. Instead, it need only be reasonably derived or supported by research in compliance with scientific methods. Gonzales v. Carhart, 550 U.S. 124, 129 (2007) (“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”).

Although this argument has merit, the Court has been given no evidence to support the finding that within the scientific community even a minority view exists that contends pain perception is possible during the first trimester of pregnancy – the time during which PPIN exclusively performs its abortion services. The Commissioner’s evidence posits only preliminary evidence that may support the inference that pain is felt by a fetus at as early as sixteen (16) weeks postfertilization.

By contrast, the scientific evidence linking induced abortion with increased breast cancer risk would have easily survived such scrutiny.