There are two types of laws. There are natural laws (lex naturalis) and then there is positive law (lex posita). Natural law is based in universal ethical principles and follows the logic of natural rights. Natural law is universal. People naturally have the right to life, liberty, and possessions. The notion of such natural rights is given to us by the natural law tradition. Positive law, or law that is posited, is rooted in human decrees. These are the rules that govern a society that might differ from those governing other societies. If a community democratically decides to set a speed limit or decides to require members to pay a tax, then we are dealing with positive law.
I personally believe that we desperately need to divorce these two types of law when it comes to law-enforcement. The organization that enforces natural law ought not to be the same one that enforces positive law. A major problem with law-enforcement in America, and why people don’t trust cops even when they are doing positive things, is that the people who protect persons and property from murderers and thieves are the same people who enforce anti-homeless laws, anti-marijuana law, and anti-LGBTQ laws. Everyone is agreed that it is good for cops to protect people from robbers and serial killers—we all agree when it comes to natural law—, but a great deal of positive law is up for debate, and most of the populace regards most positive law as illegitimate and evil. If the people that come when you call in a robbery in progress were not the same people that hide and stalk people to write speeding tickets, the people wouldn’t have such a distrust and dislike for law-enforcement in general. A major problem with police departments today is that the jackbooted thugs that show up to arrest FNB volunteers for feeding the homeless are the same people that show up when you call to report that your house has been robbed. The problem is that the fascist assholes that shoot women and children with pepper spray and rubber bullets for peacefully protesting are the same people that show up if you call 911 to report a shooting. When the duties of cops happens to include doing things that many people regard as highly unethical, how can you expect people to respect or trust the police?
Dividing law-enforcement into two separate parts is only part of the solution. It still must be asked, “If we live in a supposedly ‘democratic’ society, why is the majority of the populace dissatisfied with so many of the positive laws on the books?” The answer is obviously that we do not have a truly democratic society. So, we will need to reform our system along directly democratic lines. It would be good to incorporate some of the ideas of libertarian municipalism and of electronic direct democracy (digital democracy) into our political system. Perhaps laws could be made more locally. After delegates or representatives propose and accept laws, the people should be able to vote online and either accept or veto the laws that the politicians have chosen. It might also be good to have electronic town hall meetings online, accompanied by real-world assemblies.
Natural Law: Security/Insurance Agencies & Juries
A person naturally owns their own body. One cannot even talk of their own body without using terms of possession. This is my body. That is your body. The most basic right is the right of self-ownership or individual sovereignty. An individual ought to be sovereign over their own body. This is the reason that rape, assault, and murder are prohibited. These crimes violate the individual sovereignty of a person over their own body. Since a person owns their own body, it follows that any labor that they perform using their body as a tool is rightfully theirs as well. The labor that I perform is my labor. And it follows that the product of my labor must also be mine. The right of an individual to be sovereign over their own private possessions or “personal property” naturally follows from the principle of individual sovereignty/self-ownership. And this is pretty much the whole of natural law. A person has the natural right to be sovereign over themselves and their own property and nobody else has a right to violate their natural rights. Thus, society ought to establish institutions for the protection of persons and property.
When it comes to protection of persons and property, I advocate a modified version of the individualist anarchist model of Gustave de Molinari and Benjamin Tucker. The individualist anarchist model holds that the police should be replaced by competitive security/insurance agencies. People would insure their persons and property against theft and aggression with a competitive security/insurance company. I believe that it is very important for the security function to be linked to insurance. There is no justice at all if there is not restorative justice! If a person is robbed, imprisoning the robber does not bring justice—throwing a thief in jail does not replace the property that was stolen. When it comes to the protection of persons and property, a system of law-enforcement ought to focus primarily on restorative justice and only secondarily on retributive justice. In a system of law-enforcement based on security/insurance agencies, people would insure their person and property against theft with a particular agency. The agency would first take preventative measures to try to prevent crimes. Perhaps they would install security systems and cameras in their customers’ homes. If one of their customers is robbed, the agency would pay out on an insurance claim for the damages. The insurance company would pay the customer for the stolen property so that the customer could go replace it. The company would then open an investigation into the crime. They would attempt to determine who robbed the customer and then they would try to track that person down. The agency would act like a bounty hunter, searching for the criminal. Once they tracked down the criminal, they would arrest them and have them tried before a jury. If the jury finds them guilty, then the criminal will be fined for damages and will have to pay the security/insurance agency in order to reimburse the company for the insurance claim they had to pay out. The criminal might also be liable for legal fees associated with the trial.
I follow Lysander Spooner in holding that criminal cases should be adjudicated via trial by jury. There ought to be a written record of common laws based in natural law tradition. However, these laws ought to be loose guidelines for juries rather than hard-and-fast rules. Juries ought to make judgements based on the particular circumstances of the case. A jury should be allowed to be more lenient or strict in their application of the law depending on the particular circumstances surrounding the crime. This libertarian system of trial by jury would bear little resemblance to the system currently in place.
“ For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a ‘palladium of liberty’—a barrier against the tyranny and oppression of the government—they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.”—Lysander Spooner (An Essay on the Trial By Jury, Chapter 1, Section 1)
The security/insurance companies should be competitive in order to avoid monopolies and to guarantee that people have choices. I personally think that a directly democratic system of governance would have to regulate the security/insurance agencies in order to prevent the rise of monopolies/cartels. While the security/insurance companies and juries would provide law-enforcement and justice to provide for the security of persons and property, the security/insurance companies would be subject to the positive laws of the community. A company could be fined for violating the rules of the community. If a security/insurance company fails to pay out on a legitimate claim, the customer could file a lawsuit against the company in civil court. And the community would reserve the right to regulate the security/insurance companies as they see fit. It is my opinion that such rules and regulations should be determined through a directly democratic process.
Positive Law: Community Police & Civil Courts
Societies are always very complex. In addition to the natural law, there must also be positive law. The community must posit or declare laws about a multitude of things that can’t just be deduced from natural law and common sense. For instance, a community might find that there are too many bicyclists riding on the sidewalks and it is becoming unsafe for pedestrians. The community may choose to ban bicycles on sidewalks and decide that bicycles should only be allowed on the road or in bike lanes. People driving recklessly through residential areas might cause safety concerns. Perhaps there is a road where people often lose control of their cars and wreck from driving too quickly. The community might decide to set a speed limit for that road. Additionally, it is necessary to set rules about which side of the road to drive on, who has right of way at an intersection, and where a person may or may not park their car. These rules are perfectly legit, but they are of a different kind than those I spoke of above. Obviously, these laws cannot be enforced on the principle of restorative justice. If someone is speeding but does not cause an accident, who is the victim and what was the cost incurred by the victim? The community will have to establish a police force in order to enforce its positive laws.
I hold that all positive law should be established through direct democracy. The people should democratically determine the rules for their communities. I’m kind of interested in the idea of liquid democracy and delegative democracy. Perhaps people could elect delegates to the city council. Those delegates would be recallable. The task of deliberating and legislating could be taken up by the delegates in council. A problem with assembly democracy is that the decisions are made by those who are present and those who are absent get left out. Perhaps an open assembly associated with the city council would be beneficial, to allow lay citizens to be part of the discussion. Proposed legislation would be reviewed and voted on by the members of the council. I would prefer that the council use a qualified consensus process rather than having decisions be made by majority vote. After a law is passed by the council, there ought to be a layer of electronic direct democracy, where all the members of the community are able to veto the law. The poll should remain opened indefinitely so that citizens can change their vote at any time, allowing them to veto a law even if it has been on the books for years. The bills that make it to the council but get rejected should also be placed in the online polls, allowing the citizens to directly pass a law even if the members of the council decline to do so.
Perhaps the community police forces that enforce these rules could be rotational, where random citizens may be called upon at random to be police officers for a certain period of time as part of their civic duty. Alternatively, the community might set strict rules for who can become a police officer, setting requirements that one must meet in order to be eligible, and have the city council be in charge of appointing police. The community should also set up a process whereby the people could easily remove an officer from the service for any reason. Perhaps the community can set up a separate and independent community organization for the investigation and review of complains against officers; and this organization could have the ability to revoke an individual’s license to practice law-enforcement. The idea of e-democracy or electronic direct democracy could be applied here too. Perhaps an online poll could be set up for each officer, so that citizens could vote on whether they like or dislike a particular officer. If a substantial percentage of the populace dislikes a particular officer, then that officer should be automatically removed from the service.
The civil courts that deal with justice in regards to positive law might have democratically elected judges or arbiters. Perhaps they might not be democratically elected but required to meet certain criteria for eligibility. Maybe the judges would be appointed by the city council. There should definitely be some sort of democratic process for the removal of judges/arbiters either way. Perhaps there should be an online poll for rating of judges. The people could directly vote on whether they like or dislike a particular judge. If the judge gets an unfavorable rating, then he should be removed and replaced.
I don’t want to set any hard-and-fast rules here because the most important thing is for these rules, institutions, and practices to be determined through direct democracy. This means that the particular form that the institutions take will depend on the will and judgement of the community.
You may have noticed that I have really advocated an individualist-communalist synthesis here. I hold that the system of governance with regard to natural law and criminal cases ought to be something like that advocated by individualist anarchists. On the other hand, I hold that positive law and civil cases should be dealt with in a fashion like that advocated by communalist anarchists. I don’t think that there is any contradiction in this. There is a difference between natural law and positive law. This is why there is a difference between criminal court and civil court. I believe that these two aspects of law and order need to be handled differently and I believe that a mixture of individualist and communalist approaches is the most appropriate solution.