The Myth of the Wise Kindly Judge

A long time ago, almost 30 years now, I had a friend named Cameron. He was a sweetheart of a guy with a great sense of humor, but in his youth he was a bit naive. He told me a story that exemplified his misplaced trust in the State as a source of truth and justice.

In Cameron’s story, a friend of his was coming home late one night and stopped for a red light at a totally empty intersection. The person could see no traffic in any direction, so after stopping he carefully went through the light and continued. Of course a patrolman was hiding behind coverage and whipped out on the street to pull him over and give him a ticket.

Cameron’s friend decided to go to court and try to fight the ticket. He explained to the judge that since the intersection was completely traffic free in all directions and since the light was there to “control traffic” he felt he was safe in passing through the red light. The judge agreed and tossed the ticket and the case out. This was proof to Cameron that the “Justice System” works. To Cameron, the State was a collection of people just like you and I, working to make things better for everyone. The judge checks the actions of the cop, and if the judge misbehaves the cop will arrest him. The State checks itself. It’s all very practical.

I have no reason to disbelieve Cameron’s story, and I would even say many people have a story similar to Cameron’s. Actually I believe Cameron’s story is a relatively common version of a myth so powerful that even if it never actually happened to anyone the story would exist because people need to believe it so that they don’t have to face what a hideous cruel joke the “American Justice System” has become.

Back in the 1980’s when I knew Cameron, traffic enforcement, speed limits, and silly intersection rules were a major talking point among the libertarians I was associated with. It was the dead horse that we all took turns beating every time we spoke about liberty. The counter to our argument was always the kindly wise judge that acted with such benevolence in passing down justice from his lofty bench. We libertarians would make the argument that it wasn’t about individual results in court; it was the larger principle that had to be addressed. We would argue there is no rightful justification for taking rules of highway behavior and enforcing them as “law” when in fact there is no victim. That if a person violating traffic rules harms no one, there is no crime and police and courts have no right to be involved. But our plea for principle-based law was trumped as soon as the “kindly judge” card hit the table. We were told to be practical.

This argument between principle and practical is one that has separated libertarians from the mainstream from day one, even though it is a purely fictitious argument. As the State matures it is becoming more and more obvious that the so-called practical solution of allowing the State to watch itself is entirely impractical and illogical. If there is no principled approach to law and the State then the practical outworking will be tyranny.

All these things are perfectly obvious to most of us today so you may wonder about my reason for bringing this topic up. My concern is that even at this stage in the growth of the libertarian movement, many good-hearted activists seem to hold some aspect of this kindly judge myth still in the shadows of their minds. Over and over I have seen dedicated liberty activists express hope in the possibility of the State checking itself or restraining itself. So often I have heard libertarians express shock when some State thug does something totally unacceptable and gets away with it. Or surprised when the State takes a step backward, only to boldly take two steps forward toward tyranny. We should expect these things at all times and we should never expect the kindly judge.

Remember, the fact that the kindly judge myth exists means that it’s the oddity and not the rule. If the kindly judge were common it would be a story not told. After all, who tells the story of a perfectly common event where nothing odd happened?

Ben Stone
2011

For more articles and podcasts about liberty, the non-aggression principle, and property rights, visit badquaker.com. Click here for the permalink to the original article.