Take The Law Into Your Own Hands

Marotta writes:

We do not have a criminal justice system. We just have a disconnected set of traditions, most of which grew up in the same progressive era that brought all other government power we distrust.

Wrong.  The current criminal justice system is our criminal justice system.  The fact that it is partially a product of traditions doesn't change that.  The fact that it doesn't have a single designer doesn't change that.  You contradict yourself when you refer to "it" (when you want to attack it) and then say there is no it (when you want to dispute me).  You don't want to have trials?  You don't want to use juries?  You don't think we need evidence?  You don't want to have any criminal law?  You don't want to have a government?  Speak up, stand on your hind legs and say what we should have instead.  All we hear from you is endless whining about all these things that are wrong, and implying that I'm ignorant and possibly immoral - hardly a resounding argument or anything of much value. 

You speak dismissively of the Bill of Rights because of things that happened before the 30s.  So, you don't want a government at all, or you don't want any attempt to limit its power with a constitution?  Help us out.  You aren't the least bit clear as to what we should be trying to adopt in place of this constitutionally limited republic which has criminal laws, courts and prisons.

You bitch and moan about what could happen to a person before the 1930s.  Well, if there is any merit to that kind of complaining, then why not go for real merit and talk about what could happen to a person before the 1730s or the 1530s, etc.  Clearly we do have a system, despite the fact that it is far from perfect.  You have with your own words described some of the improvements that it has brought about when you describe how much worse things were.  Unless you want to remain a concrete-bound whiner, try to describe the principles that I've mentioned that are wrong and what should be used instead.  I suspect that we both have the same goal in mind: A society that is the most effective in the protection of individual rights.  The set of princples I've mentioned are better than what we have seen under different philosophies.  Their application has improved somewhat over the long haul... and you still haven't done anything but whine.
 

Mike Erickson,

Haha, at last, someone's shown up who's 'got a pair.

Cheers,

Dean

I think I should correct something about my last post:

The answer to the third (and probably second) question is actually very obvious after thinking about it. What someone believes or not is mostly irrelevant to proper justice; a man may simply believe someone else is guilty of something because he is just irrational. It would be no more fair to release a man who irrationally believed the man he killed deserved to die than to release a man who irrationally believes that murder is acceptable. Regardless of if the man was sincere, the fact that he chose to act without the reasonable requirement of evidence is indefensible.

As I see it, the only case in which a murderer of that kind ought to be treated any differently than any other murderer is if:

-He knew beyond a reasonable doubt that the man he killed (before he killed him) had himself committed murder, and for whatever reason the authorities did not know or could not have known that at the time. I should make clear that the man would have to have some form of empirical evidence (seeing him commit the crime, ect.) before he acted for it to be justified in any way.

-He had suffered an uncontrollable emotional reaction that no other reasonable person could avoid. This form of argument was used in Jack Ruby's defense after he had shot Lee Harvey Oswald on live Tv (murder without malice).

I have edited my previous post to make more sense now.

Hi Deanna,

That's a quibble I acknowledge... I've not felt that comfortable with the idea I floated.  I agree with you but only about half-way.  I'm still undecided.  There are a lot of these things that are required under our system, but that are too pinched of an application of NIOF to be accepted (like throwing out ANY detention of a person who has been indicted of a serious crime, but not yet convicted).

There might be a way to have testimony be voluntary and yet people would still show up - maybe it requires no more than people understanding that it is in their interest to support the system because it works for justice.  Which means that on the society level people would get the justice they deserved. 

Hi Colin,

I'll tell you how my thinking has evolved.  First, as far as I know, I'm completely in agreement with Ayn Rand's description of individual rights and that they must be the foundation of a proper government.  But how do you do that?  What would such a government look like?  How do we get to there from here?

One small shift in my thinking is about realizing that government does NOT protect individual rights - not in a direct way.  It isn't that they shouldn't, but rather that it doesn't work that way.  If you are walking down the street it would be extemely unlikely that a cop would be where he needed to be to stop a mugger before he could go after you.  We can't protect individual rights in that way - it wouldn't work.

With criminal law, government comes in after the crime in almost all cases.  The crime gets committed, then they catch and lock up the criminal (he is less likely to commit a future crime either because he is in jail, or because he has been taught a lesson, and other would-be criminals might be detered). 

If we want to measure the effectiveness in protecting individual rights we have to measure the enviroment to see how much it favors individual rights.  For example, if we measured all muggings that occured, but ignored some wierd law that failed to put muggers in jail - maybe because it was overcrowed, and because of that law, mugging were way up, it wouldn't matter that muggers were being caught.  It has to be the measure of the environment's overall friendliness to individual rights. 

I was seeing Objectivists who argued that we could not have any taxes at all - that we could only have voluntary funding (which I think we CAN achieve, eventually).  But insisting on it now is like throwing out the baby with the bathwater because without any funding we can't have any of the needed structure to protect rights.  Then there were the anarchists who didn't want any organization to have a monopoly on creating laws, but without uniform laws, there is no way to impliment descriptions of the acts that violate rights and therefore no way to protect rights.

When a person understands that it is an entire structure (legislators, laws, administrators, enforcement officers, courts, etc.) that has to be in place, and has to be stable, and properly run and monitored and adequately funded then they won't claim to be reasonable while asking for the impossible: the protection of individual rights without any costs or means.  When you undertake the protection of rights it has to include the minimal costs involved.

It is about purpose.  What is our purpose?  It is to create the environment that will best encourage and maintain the protection of individual rights - that takes us to the questions of what structures, what laws, what processes will do that?  Then we keep on improving on every single aspect of the environment to get us closer to the ideal protection of individual rights.

Ayn Rand defined Individual rights as moral principles that apply to those actions that can be taken in a social context without anyone's permission - and as those actions that no one has the right to violate.  So, if you wish to live in a social context and to accept that man cannot live without morals, then you are buying in to the whole package.  It means that no one can logically make a moral claim against a bare minimum of taxes needed to pay for the bare minimum criminal justice system based upon individual rights.  When we, as a society, get close to that minimum I have no doubt that creative people will come forth with many workable plans to replace taxes with forms of voluntary funding.  Calling for respect for individual rights but denying any practical means of implementing their protection is just living in the cloud land of floating abstractions.

Steve you wrote,

As a side note, I once seen a story about a father who killed the man that murdered his son. The child murderer was in police custody and there was no reason to believe that he would be acquitted. As far as I know, the father was charged with second degree murder (murder without malice forethought). Was the father's sentence justified? Should he have received a lesser sentence? Should he have been let go? Were his actions justified because of an uncontrollable emotional reaction or because the child murderer would not receive the death penalty?

 

I am of the opinion that the father should have been released, or at least received a small sentence for disturbing the justice system.

 

Steve, did you mean to ask, "Was the father's conviction justified?  You didn't indicate what sentence he received.  In any case, you have to view it from the perspective of the criminal justice system itself.  The state cannot legally release the father, because his action was that of a vigilante.  This is true even if the murderer was or would have been acquitted.

As for the death penalty, it cannot be justified as a matter of procedural justice, because prosecutorial evidence is not infallible and a wrongful conviction cannot be overturned if the convict is dead.  Of course, your example presumes infallibility; it presumes that the accused murderer is in fact the real murderer.  But in a jury trial, there is no such presumption of infallibility.  People can be, and often are, wrongly convicted.

Oops!  Sorry, Steve.  As your post immediately preceded Liam's, I overlooked his.  Okay, Liam, if the shoe fits . . . ;-)

Liam wrote:

The fact that the father suffered the loss of his son creates a strong phycological need for [him to take] action .... he ought to be punished under the law (death penalty or not), the question is how do his actions compare to other second-degree murders suffering the same penalty?

With criminal law the tendency has been to craft different levels for a crime, like 1st degree, second degree, manslaughter, etc.  And to make objective distinctions to separate those levels, distinctions that can be known in advance.  Within a given level, the judge is usually given room to adjust the degree of punishment based upon mitigating circumstances.  Usually, the very nature of the law, as a set of objective critera, does not excuse a criminal action because the person was behaving emotionally when they should have been thinking, but I wouldn't be surprised to see the father's sentence being on the light side - not because of his emotional state, but because his victim was already adjudged guilty.  That's not in the law, which has to stand against vigilate actions, but because the judge is likely to be a proponent of justice even if he can't go so far as to let the father off.

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The fact that the father could not control this phycological need in a productive way does not justify his actions, but the difficulty of his phycological needs separates him from any other vigilante who act on their emotional whims.

I'd just say that the father could control his actions, even if he can't escape his emotions and even if they are very powerful. 

That's a good point about the difference between the father and other viglantes - the father suffered a massive, personal injustice (regardless of his emotions) and the other viglantes are usually not in that situation.