Victim prosecution. Most people detest the idea, thinking it means anybody can criminally prosecute anybody. I detest State prosecution, since it leaves prosecution entirely to politicians who are immune to any remedy except the voters.
Losers pay all costs which would not have been spent absent the prosecution, including lost wages, travel accommodations, etc, would deter most false prosecutions.
Allow juries to assign guilt and sentence to everybody involved, including the prosecution for obviously malicious prosecution.
Do not allow prosecutors to drop any charges; they all go to the jury. Any that are acquitted subtract from the convictions. If the net total comes out negative, the prosecutor takes the hit, even if that means jail. Of course this encourages juries to not acquit for popular prosecutors, so allow three verdicts: guilty and innocent which act as described, and the neutral Not Proven which doesn't affect he net sentence.
Expand perjury. My libertopia calls it "authoritative misrepresentation" and the punishment is the issue at stake; you try to frame someone for murder, you get the maximum punishment you tried to inflict. It applies not only to trials, but to everything -- commercials, official political speeches, newspaper articles. If they are presented as "authoritative", ie official, truthful, etc, and shown to be known lies, that is perjury. One catch is that there must be an issue -- lying about Santa Claus has no issue. Giving a speech about immigration has no issue. Think of those as zero value issues. A used car salesman lying about a car owes the price of the car. A drunk bragging about how fast his car is has no issue, even if it comes down to a race for pink slips, since that is what races are for, to find out which is fastest. But if one racer cheats, that is perjury.
I think the problem with your proposals, as with my belief fifty years ago that a lot of problems could be solved by tort liability, is not allowing for costs and errors of an imperfect judicial system. The more is at stake in litigation, the more is likely to be spent on it.
I don't know if you have read my _Legal Systems Very Different from Ours_. A number of your suggestions have been implemented in real world societies. Almost all criminal prosecution was private in England until the 19th century and there was a legal action, the "Appeal of Felony," that was entirely private, analogous to a tort suit. Blackstone commented that if the defendant was convicted the king could not pardon him, because the crown was not a party to the litigation. Private prosecution is still an option in English criminal law, although an uncommon one. I'm pretty sure there was a legal system, possibly Rabbinic Law, where causing someone to be executed by false testimony was a capital offense.
"A used car salesman lying about a car owes the price of the car. "
Shouldn't it be the damage done by the lie? If the salesman claims the car has only 50,000 miles when it actually has 70,000, some measure of the reduced value due to the higher mileage.
Yes! Read the book, it is fascinating, and I've recommended it to a few others. I remember that private prosecution partly worked because the crown courts usually punished with hanging or transportation, so the criminal had a real incentive to cooperate with the private prosecutors. My libertopia has its own angle which is not as severe but I think as effective. I've written a lot on it for my own purposes, to help me understand real world legal systems, which doesn't mean it would work; it's more like that spherical cow.
Yes, the used car salesman example was shorthand. There are a lot of variations. If the customer says he doesn't care whether the engine is a V-6 or V-8, the salesman can lie about that because no harm has been done.
Another reason for making the evidence from a warrantless search inadmissible is that a piece of evidence isn't really evidence without sworn testimony as to where, when, and in what state it was found. "We found Exhibit A in the sock drawer of the accused person's bedroom." And if that sworn testimony comes from a known perjurer - someone who has violated his oath to the Constitution - then it's no more reliable than hearsay.
Frankly, the old British system whereas there's no authority above Parliament appears to me to be, if not a solution, a honest response to these and other like issues.
If i let the CPS folks off, then ipso facto what they did is legal.
If the question of what if not even Parliament is obeyed comes up, then you are due for a civil war anyway.
Is the selection of examples meant to emphasize the point that Constitutionalism is stupid and doesn't deserve respect? I mean, imagine caring what the constitution says about gun ownership, it's absurd. I swear law professorships were invented by deep-cover anarchists to discredit the rule of law as a concept.
I am trying to point out the difficulty of enforcing legal rules, including constitutional ones, if they do not have substantial support in the relevant population — and to ask for ideas for ways to deal with the problem.
One possible solution to the problem of ignoring the Supreme Court would be for the court to have the power to declare a public official that ignored their ruling “outlaw”. Such public officials would no longer have the protection of the law, could no longer hold official office, and perhaps be named an enemy of the people such that every citizen had the right and obligation to do them harm if they could. (I am borrowing a bit from Roman law there.) Of course one would want that to require a unanimous court ruling, and be based only on ignoring a specific ruling from the court that the public servant had been made aware of.
It is a bit extreme, but does solve the problem of the government not needing to follow the law; let the people themselves enforce it. If no people wish to enforce that extreme ruling, then it is the court that is wrong and the legislature ought to impeach. In fact I would say that the biggest problem is that the penalty would never be used, much like how impeachment of officials is surprisingly rare.
Still, it would be nice to have an option to allow for the people to deal with tyrants in government instead of hoping the government will enforce rules against itself.
In my libertopia, all verdicts are for money amounts only. No jail time. Of course, the loser can trade prison, time in the stocks, or walking around wearing a humiliating sandwich board for reduction in restitution, but everything has to be quantified as dollars in the verdict.
And if you don't pay your restitution, you are an outlaw for that amount. You can no longer file charges for any amount less than your verdict debt. This means that your neighbors and everyone else can steal from you, with certain exceptions -- can't steal your clothes, food, medicine, shelter, or anything else whose loss would cause far more damage than the mere monetary loss.
Employers are highly unlikely to withhold pay from outlaw employees. It tells the public that the employer hires burglars, it's too despicable for most people's taste, it sends a bad signal to other employees, and the public might not appreciate it either. Of course much of this depends on the popularity of the employer and outlaw, but I think it generally unlikely in normal cases.
These thefts can't reduce the outlaw debt, because (a) the victim, the outlaw creditor, doesn't get them, and (b) setting a value to the stolen property just begs for collusion between the outlaw and his friends. Even if the outlaw creditor steals, legally, (b) applies with the creditor selling them cheap at a flea market.
This doesn't automatically turn every convicted burglar into an outlaw doomed to live in poverty. Victims are free to sign repayment contracts converting their outlaw debt to a loan. You can set time limits: the victim has to make efforts to collect, outlaw debt decreases over time, and so on.
Great piece! A possible solution could be having lawyers and lawmakers be obliged (social pressure or legal sanction?) to bet on the outcome of their case, so that spurious or obviously unconstitutional cases impose a social and monetary cost on lawmakers/lawyers. “Conditional on this law passing what are the odds it will be struck down by a federal judge as unconstitutional by a 6/3 majority in less than 5 years?”
"One of the oddities of the American legal system is that it deals with warrantless searches and similar violations of the Fourth Amendment not by punishing the violator but by making the evidence inadmissible, which in some cases means letting someone go free whom the evidence shows to be guilty."
Jagdish Bhawati once wrote somewhere that an improvement would be to punish the violator, and to also punish the official[s] who broke the law on warrantless searches.
That, as I understand it, was the legal situation in the U.S. in the 19th century. But I'm going by a conversation with a law school colleague — I haven't actually looked at the evidence for myself.
It has always seemed do goofy to me. Illegally search someone's car and find a dead body, and throw out the evidence? Just pretend you didn't find it? Contraband is the usual find, but not as stark.
The problem is that police, prosecutors, and judges all have the same employer, and they are loathe to undercut each other. So much easier to create absolute and qualified immunity, and police have to really screw up badly to ever be charged with any crime.
Imagine instead victim prosecution and private police. Police from one company will certainly be reluctant to arrest police from other companies, but it's more likely than the current system, and if everyone can be their own police, victims won't hesitate. And my definition of perjury and loser pays will weed out both amateur and professional incompetent and abusive police.
Tort law is privately prosecuted. In my first book I discussed the police raid on Black Muslims in Chicago, which pretty clearly was first degree murder. None of the police were charged, let alone convicted, but the survivors sued and collected a substantial out of court settlement.
One thing which puzzles me is the distinction between criminal and civil cases. I sort of understand that criminal matters upset society, such as people worried about going out at night because of a serial killer or a lot of robberies. But one could say the same for a store selling shoddy goods, and maybe that is why governments do sometimes criminalize pure commerce actions. One of the attractions to me of victim prosecution is eliminating the distinction.
But it's more a puzzle to understand than a gripe.
Thanks. Got it, kindle says I have already read it, but not when, so I will restart and at least skim it to refresh my memory.
I think what got me interested in law was a history of law and how America changed English law. Suddenly women had to be able to own land, because if hubby died, no one back home was likely to want to come over and take charge; land had to be sellable (apparently used to take an act of Parliament) because the colonists moved west so much; and something else equally odd but common sense.
Victim prosecution. Most people detest the idea, thinking it means anybody can criminally prosecute anybody. I detest State prosecution, since it leaves prosecution entirely to politicians who are immune to any remedy except the voters.
Losers pay all costs which would not have been spent absent the prosecution, including lost wages, travel accommodations, etc, would deter most false prosecutions.
Allow juries to assign guilt and sentence to everybody involved, including the prosecution for obviously malicious prosecution.
Do not allow prosecutors to drop any charges; they all go to the jury. Any that are acquitted subtract from the convictions. If the net total comes out negative, the prosecutor takes the hit, even if that means jail. Of course this encourages juries to not acquit for popular prosecutors, so allow three verdicts: guilty and innocent which act as described, and the neutral Not Proven which doesn't affect he net sentence.
Expand perjury. My libertopia calls it "authoritative misrepresentation" and the punishment is the issue at stake; you try to frame someone for murder, you get the maximum punishment you tried to inflict. It applies not only to trials, but to everything -- commercials, official political speeches, newspaper articles. If they are presented as "authoritative", ie official, truthful, etc, and shown to be known lies, that is perjury. One catch is that there must be an issue -- lying about Santa Claus has no issue. Giving a speech about immigration has no issue. Think of those as zero value issues. A used car salesman lying about a car owes the price of the car. A drunk bragging about how fast his car is has no issue, even if it comes down to a race for pink slips, since that is what races are for, to find out which is fastest. But if one racer cheats, that is perjury.
I think the problem with your proposals, as with my belief fifty years ago that a lot of problems could be solved by tort liability, is not allowing for costs and errors of an imperfect judicial system. The more is at stake in litigation, the more is likely to be spent on it.
I don't know if you have read my _Legal Systems Very Different from Ours_. A number of your suggestions have been implemented in real world societies. Almost all criminal prosecution was private in England until the 19th century and there was a legal action, the "Appeal of Felony," that was entirely private, analogous to a tort suit. Blackstone commented that if the defendant was convicted the king could not pardon him, because the crown was not a party to the litigation. Private prosecution is still an option in English criminal law, although an uncommon one. I'm pretty sure there was a legal system, possibly Rabbinic Law, where causing someone to be executed by false testimony was a capital offense.
"A used car salesman lying about a car owes the price of the car. "
Shouldn't it be the damage done by the lie? If the salesman claims the car has only 50,000 miles when it actually has 70,000, some measure of the reduced value due to the higher mileage.
Yes! Read the book, it is fascinating, and I've recommended it to a few others. I remember that private prosecution partly worked because the crown courts usually punished with hanging or transportation, so the criminal had a real incentive to cooperate with the private prosecutors. My libertopia has its own angle which is not as severe but I think as effective. I've written a lot on it for my own purposes, to help me understand real world legal systems, which doesn't mean it would work; it's more like that spherical cow.
Yes, the used car salesman example was shorthand. There are a lot of variations. If the customer says he doesn't care whether the engine is a V-6 or V-8, the salesman can lie about that because no harm has been done.
Another reason for making the evidence from a warrantless search inadmissible is that a piece of evidence isn't really evidence without sworn testimony as to where, when, and in what state it was found. "We found Exhibit A in the sock drawer of the accused person's bedroom." And if that sworn testimony comes from a known perjurer - someone who has violated his oath to the Constitution - then it's no more reliable than hearsay.
Frankly, the old British system whereas there's no authority above Parliament appears to me to be, if not a solution, a honest response to these and other like issues.
If i let the CPS folks off, then ipso facto what they did is legal.
If the question of what if not even Parliament is obeyed comes up, then you are due for a civil war anyway.
Is the selection of examples meant to emphasize the point that Constitutionalism is stupid and doesn't deserve respect? I mean, imagine caring what the constitution says about gun ownership, it's absurd. I swear law professorships were invented by deep-cover anarchists to discredit the rule of law as a concept.
No.
I am trying to point out the difficulty of enforcing legal rules, including constitutional ones, if they do not have substantial support in the relevant population — and to ask for ideas for ways to deal with the problem.
>so a minor meant anyone the said was a minor
Should be "they said."
You may want to run posts through an LLM and asking it to find typos.
One possible solution to the problem of ignoring the Supreme Court would be for the court to have the power to declare a public official that ignored their ruling “outlaw”. Such public officials would no longer have the protection of the law, could no longer hold official office, and perhaps be named an enemy of the people such that every citizen had the right and obligation to do them harm if they could. (I am borrowing a bit from Roman law there.) Of course one would want that to require a unanimous court ruling, and be based only on ignoring a specific ruling from the court that the public servant had been made aware of.
It is a bit extreme, but does solve the problem of the government not needing to follow the law; let the people themselves enforce it. If no people wish to enforce that extreme ruling, then it is the court that is wrong and the legislature ought to impeach. In fact I would say that the biggest problem is that the penalty would never be used, much like how impeachment of officials is surprisingly rare.
Still, it would be nice to have an option to allow for the people to deal with tyrants in government instead of hoping the government will enforce rules against itself.
In my libertopia, all verdicts are for money amounts only. No jail time. Of course, the loser can trade prison, time in the stocks, or walking around wearing a humiliating sandwich board for reduction in restitution, but everything has to be quantified as dollars in the verdict.
And if you don't pay your restitution, you are an outlaw for that amount. You can no longer file charges for any amount less than your verdict debt. This means that your neighbors and everyone else can steal from you, with certain exceptions -- can't steal your clothes, food, medicine, shelter, or anything else whose loss would cause far more damage than the mere monetary loss.
Employers are highly unlikely to withhold pay from outlaw employees. It tells the public that the employer hires burglars, it's too despicable for most people's taste, it sends a bad signal to other employees, and the public might not appreciate it either. Of course much of this depends on the popularity of the employer and outlaw, but I think it generally unlikely in normal cases.
These thefts can't reduce the outlaw debt, because (a) the victim, the outlaw creditor, doesn't get them, and (b) setting a value to the stolen property just begs for collusion between the outlaw and his friends. Even if the outlaw creditor steals, legally, (b) applies with the creditor selling them cheap at a flea market.
This doesn't automatically turn every convicted burglar into an outlaw doomed to live in poverty. Victims are free to sign repayment contracts converting their outlaw debt to a loan. You can set time limits: the victim has to make efforts to collect, outlaw debt decreases over time, and so on.
Great piece! A possible solution could be having lawyers and lawmakers be obliged (social pressure or legal sanction?) to bet on the outcome of their case, so that spurious or obviously unconstitutional cases impose a social and monetary cost on lawmakers/lawyers. “Conditional on this law passing what are the odds it will be struck down by a federal judge as unconstitutional by a 6/3 majority in less than 5 years?”
"One of the oddities of the American legal system is that it deals with warrantless searches and similar violations of the Fourth Amendment not by punishing the violator but by making the evidence inadmissible, which in some cases means letting someone go free whom the evidence shows to be guilty."
Jagdish Bhawati once wrote somewhere that an improvement would be to punish the violator, and to also punish the official[s] who broke the law on warrantless searches.
That, as I understand it, was the legal situation in the U.S. in the 19th century. But I'm going by a conversation with a law school colleague — I haven't actually looked at the evidence for myself.
It has always seemed do goofy to me. Illegally search someone's car and find a dead body, and throw out the evidence? Just pretend you didn't find it? Contraband is the usual find, but not as stark.
The problem is that police, prosecutors, and judges all have the same employer, and they are loathe to undercut each other. So much easier to create absolute and qualified immunity, and police have to really screw up badly to ever be charged with any crime.
Imagine instead victim prosecution and private police. Police from one company will certainly be reluctant to arrest police from other companies, but it's more likely than the current system, and if everyone can be their own police, victims won't hesitate. And my definition of perjury and loser pays will weed out both amateur and professional incompetent and abusive police.
Tort law is privately prosecuted. In my first book I discussed the police raid on Black Muslims in Chicago, which pretty clearly was first degree murder. None of the police were charged, let alone convicted, but the survivors sued and collected a substantial out of court settlement.
One thing which puzzles me is the distinction between criminal and civil cases. I sort of understand that criminal matters upset society, such as people worried about going out at night because of a serial killer or a lot of robberies. But one could say the same for a store selling shoddy goods, and maybe that is why governments do sometimes criminalize pure commerce actions. One of the attractions to me of victim prosecution is eliminating the distinction.
But it's more a puzzle to understand than a gripe.
You might want to read my _Law's Order_, which is a book on the economic analysis of law. I spend a chapter on the crime/tort puzzle. A late draft is webbed: http://www.daviddfriedman.com/Laws_Order_draft/laws_order_ToC.htm
The final version is also webbed but as page images, not text: http://www.daviddfriedman.com/laws_order/index.shtml
Thanks. Got it, kindle says I have already read it, but not when, so I will restart and at least skim it to refresh my memory.
I think what got me interested in law was a history of law and how America changed English law. Suddenly women had to be able to own land, because if hubby died, no one back home was likely to want to come over and take charge; land had to be sellable (apparently used to take an act of Parliament) because the colonists moved west so much; and something else equally odd but common sense.