Anarchism v. Nihilism
Norm Pattis has a very interesting post up today about Lysander Spooner and his Essay on the Trial by Jury. (Norm, a prominent Connecticut trial lawyer whose recent book includes a Foreword by F. Lee Bailey and an Introduction by Gerry Spence, credits yours truly with directing his attention to Spooner. I’ve sometimes second-guessed the value and purpose of this blog. Posts about the actual practice of law or actual court decisions have been few and far between, and, on the other hand, the folks at the Center for a Stateless Society illuminate the principles of anarchism more eruditely than I. But if I’ve facilitated a little cross-pollination, bringing some anarchism to trial lawyers, maybe some Georgism to anarchists, and maybe even a little religion to anarchists and trial lawyers, maybe this blog hasn’t been a complete waste of time.)
Norm’s post concludes:
We live in this schizoid fog because we lack the confidence as individuals to say what is and is not just. Indeed, it’s chic in most quarters to view the very question as quaint, or perhaps, naive. We’re just like sheep, afraid to reason, and then following the man or woman bold enough to seize the shepherd’s crook. We love to complain about politicians, yet we follow them blindly. Because we lack the courage to say what is just, because we are nihilists at heart, we take what we get and hope for more. I wonder what would happen if we took our hopes more seriously, and if jurors began to say “no” simply because they can do so. I wonder what would happen if we casts more bricks than votes, if we had the courage to believe, as the anarchists do, the we do not need to be told what is just, that we know it in our bones.
I’ve said it before and I’ll say it again: Justice is the absence of crime. Although, as Norm says, “‘right reason’ is said to shed light on justice,” it’s not all that complicated. Reason is simply the faculty of knowing the truth. Argument is the lowest form of reason, and its aim is to directly understand the truth. Lawyers, law professors, judges and politicians are certainly not more qualified to discern truth, or what justice requires, than are human beings. Quite the opposite. Restoring the right of juries to judge the justice of the laws does not entail expecting jurors to become expert logicians or policy wonks. If Justice is the absence of crime, it is something negative (in the good sense). It is characterized, as the passage from Norm’s post quoted above suggests, by simply saying “no.” It is characterized, in the first instance, by not doing something rather than by doing something.
If Justice is the absence of crime, what is crime? Presumptively, it’s simply anything we would not have others do unto us. Locking a human being up in a cage like an animal is presumptively a crime. Taking a person’s money, by sticking him up in an alley, or by threatening to lock him up in a cage like an animal if he doesn’t pay his “taxes,” is presumptively a crime.
I am not pure enough to subscribe to the pacifism advocated by Tolstoy. Sometimes we should fight crime with what is presumptively a crime. But we should thus fight fire with fire, violence with violence, only insofar as doing so is truly necessary, and only as a last resort. As a practical matter, Justice is the presumption of innocence.
Here’s some food for thought from Spooner’s Essay on the Trial by Jury:
It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes, of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor — that is, with the government.
It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And, as unanimity is require for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the [*8] government’s judging of and determining its own powers over the people.
But all this trial by the country” would be no trial at all “by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.
. . .
The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people; that, in theory, it represents the people; that it is designed to do the will of the people; that its members are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are therefore entitled to be considered the acts of the people; and that to allow a jury, representing the people, to invalidate the acts of the government, would therefore be arraying the people against themselves.
There are two answers to such an argument.
One answer is, that, in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive, fn2 jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws, than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves, when a jury puts its veto upon a statute, which the other tribunals have sanctioned, than they are when the [*12] same veto is exercised by the representatives, the senate, the executive, or the judges.
But another answer to the argument that the people are arrayed against themselves, when a jury hold an enactment of the government invalid, is, that the government, and all the departments of the government, are merely the servants and agents of the people; not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people, before they carry them into execution by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of “the country,” before executing them upon individuals if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.
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