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Why I Favor Limited Government: A Rebuttal


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03/08/2017Louis E. Carabini

Dear Jacob,

Your article “Why I Favor Limited Government” has given me an opportunity to think about and respond to several of your arguments. My comments are indented and address your abbreviated statement that precedes each of my responses.

Please accept my responses with all due respect.

Lou Carabini (LEC)


Why I Favor Limited Government, Part 1

by Jacob G. Hornberger (JGH) — March 2016 issue Future of Freedom

LOUIS E. CARABINI: If by your title you mean that you prefer or favor someone to govern you, while not prohibiting others from volitionally choosing to be governed by someone else or themselves, then you’re simply expressing a preference and minding your own life, leaving others like myself to mind ours. Such a preference is a very libertarian and humane posture. This would be very much the same as the hundreds of preferences we express every day in matters of commerce and personal affairs with nary a thought that our preferences should in anyway prohibit others from expressing and realizing theirs. Such a posture recognizes the sacrosanctity of the lives of your fellow man as your preferred means to gain the same recognition by them of the sacrosanctity of yours. This is the way we conduct ourselves in our private affairs and represents the essence of liberty.

On the other hand, if by favoring government you mean that I and others who prefer to be governed by someone of our choosing or to govern our own lives would be physically prohibited from doing so by you or your favored proxy, then it would not at all be a libertarian or humane posture. In fact, it would be quite tyrannical, since physical force is employed upon those preferring to be left to make their own choices of how they want to govern their lives. When one decides that he knows better how to govern the lives of others against their will, one exalts himself to a level of master and in doing so demeans his life and the lives of those he sees as his subjects. One cannot on the one hand subject another to his will and on the other hand call it just, moral, or liberty without first bastardizing the definition of those words. Trying to limit liberty is as meaningless as is trying to limit slavery.

Government brings out the worst in people because it empowers them to believe they are superior to those they rule. They become desensitized and conduct public acts that even they would find reprehensible and unthinkable if they were to conduct themselves the same way in their private affairs. Nature’s feedback following our chosen acts is a guide to repeat or avoid those acts in the future. However, when an actor is not subject to negative feedback, as is the case of government agents, dastardly acts are not likely avoided. Aside from the lack of personal risk to the actor, acts that we know will not work to benefit our neighborhood will also not work to the benefit of a nation. Social improvements result from acts that are found to be volitionally beneficial and rewarding.

There’s no doubt that you and others who endorse the State have good and honorable intentions, but nature doesn’t give a hoot about intentions; it’s the acts that produce feedback. Trying to make the world a better place by endorsing public acts that we know firsthand will not result in a better neighborhood is to believe in a fickle nature wherein the outcome of an act depends not on the act, but on the actor. See: “The Harm That Good Men Do” by Bertrand Russell.

A simple mental exercise to easily gauge the soundness of a proposed government act is to envision yourself personally carrying out that act upon a neighbor, fellow worker, or friend using only common sense and your moral compass as your guide. The human spirit tells us what is right and wrong when engaged in personal affairs, but unfortunately that moral compass within us is desensitized by the constant political propaganda that transfers personal responsibility for our acts to an authority that has gained our obedience. See “Obedience to Authority” by Stanley Milgram.

For one to believe in the humane treatment of one’s fellow man while at the same time pledging an allegiance to a State is a sad commentary of how political patriotism can blind one’s sense of decency. Consider why an act appears so ugly and inhumane when we envision ourselves holding a gun to force others to do our will and yet so neat and tidy when government holds that gun and does it for us.

JACOB G. HORNBERGER: Ever since I became a libertarian in the late 1970s, there has been an ongoing debate within the libertarian movement between libertarians who advocate limited government and those who advocate anarchy, meaning a society based on the absence of government. Famous libertarian advocates of limited government include Ludwig von Mises, Friedrich Hayek, Milton Friedman, and Ayn Rand. The most famous libertarian proponent of anarchy is Murray Rothbard, who authored the 1973 pro-anarchy book For a New Liberty: The Libertarian Manifesto and who is generally recognized as the father of what has become known within the libertarian movement as “anarcho-capitalism.”

LEC: [re: “Ever since I became a libertarian”]. When claiming to be a libertarian one undoubtedly means something related to liberty, which is by its very nature an individual concept, since only individuals can act using their cognitive reasoning and preferences. Groups, nations, states, and the like are incapable of reasoning and acting and as such are not liberty minded. To circumvent the individual concept of liberty is to discard the essence of its meaning.

Political schemes are given titles that sound appealing, since a title that actually described what the scheme entails would attract few followers. Communism, socialism, liberalism, and democracy are very humanitarian sounding political titles. They connote community, social interaction, liberty and self-governing respectively, with an umbrella of decency and kindness toward one’s fellow man. However, the actions taken by those carrying such titles are as ruthless, brutal, and demeaning to their fellow man as the acts committed by those carrying titles that actually describe what they do. In the convoluted world of politics, those who abhor plunder, war, and the subjugation of one’s fellow man while minding their own business are labeled dangerous and tyrannical. In the world of politics, the clever use of words can twist the minds of even the most thoughtful into accepting and endorsing schemes that would otherwise defy their common sense.

[re: “ongoing debate within the libertarian movement”]. The ongoing debates to which you refer and of which I have witnessed numerous times during the past 50 years are always about social services that only government can provide. Advocates of government claim everyone needs (their) government to provide roads, justice, and defense and to bring about order; without government the world would be chaotic. The debates never address the underlying question of how an advocate of government acquires the ownership of me and others who do not want to participate in their scheme. If government is so great, why do advocates need me and others who find the concept tyrannical, inhumane, and fallacious?

Those who endorse government cannot at the same time logically endorse the idea of individual liberty, since the two concepts are mutually exclusive. The reason such debates are never ending as you’ve observed is because underlying all the rhetoric are two uncompromising claims: “I own you” and “No you don’t!”

It is one thing to be wrong-thinking and another to force others to accept one’s thinking. For one to believe the earth is the center of the universe does not in itself require others to believe the same; but when prohibited by force from believing otherwise, as was the case for several centuries, it is a sure sign the belief is fallacious. A belief that political government serves a beneficial purpose is fallacious thinking because force is needed by its advocates to subdue their non-believing adversaries.

JGH: Over the years, I have periodically engaged in informal debates on this issue and even organized a “limited-government versus anarchy” debate at a summer seminar at The Foundation for Economic Education, where I served as program director from 1987 to 1989. However, I have never written an article on the subject, thinking that it was more important to focus my attention primarily on the federal government’s infringements on liberty than to engage in this intra-libertarian debate.

LEC: [re: “government’s infringements on liberty”]. Government doesn’t infringe upon liberty any more than a private thief does. The concept of liberty is a personal mindset that is oblivious to what others believe and how they act. Governments force people to pay tribute and to act according to their will, and, as such, are no different than any person or entity doing the same. To paint government into a corner, as Leonard Read proposed, is to believe that government has an essence of goodness. While the people in government may have an essence of goodness, government and its power will turn even the most placid person into a dreaded tyrant. This transformation is not something that we need to be shown; all of us have personally witnessed the subjugating, arrogant attitude of those with the power to enforce obedience upon those within their political jurisdiction. These very same people will transform back to their moral selves when engaging those outside their jurisdiction. Government can only bring out the worst in people because there is little fear of repercussions for dastardly acts as there would be in the private sector. The gun power behind every government agent is too massive to ignore, so obedience becomes the more reasoned response.

JGH: Since the issue is still the subject of vibrant discussion within the libertarian movement, both in academic and nonacademic arenas, I have decided to weigh in on it with this multipart essay, which will analyze the limited-government paradigm and explain the reasons I favor it. It will also show how and why limited government has both succeeded and failed in major ways and will show what needs to be done to bring limited government to our land. The essay will also analyze the anarchy paradigm and explain the reasons I oppose it. It will also show the fatal fallacies of anarchy and explain why I believe that the adoption of the anarchy paradigm would be a monumental mistake.

LEC: [re: “anarchy paradigm would be a monumental mistake.”] Consider your own conduct in personal affairs, since that is exactly the paradigm of anarchy. You don’t order and push people around as if you are their ruler and they are your subordinates, and you likely don’t take kindly to those who want to push you around. You may push people away, but that’s a major difference than pushing them around. You cooperate instead of using force, you persuade without guns, and you respect the lives of others who do the same. If that paradigm is fatal, then so is liberty (which it is not!). See: “The Obviousness of Anarchy” by John Hasnas.

An anarchist (an=without, archy= ruler) does not recognize another as his ruler. While he may invite others to consider his views, he doesn’t require or force others to adopt them. By its literal meaning, an anarchist considers him or herself neither superior nor subordinate to the lives of others. He may pay tribute to a ruler, but not because such is due. An anarchist is an individualist who assumes full responsibility for the living of his own life. An anarchist doesn’t abhor rules, since rules of social conduct that are attractive will bring people together volitionally. Ostracizing those conducting themselves inappropriately is the most effective means to gain compliance. Reputation carries its own reward and punishment.

JGH: Let’s begin with the Declaration of Independence and the book on which it is based, John Locke’s Second Treatise on Government. Locke and Thomas Jefferson, the author of the Declaration, pointed out that people have been endowed with certain fundamental, natural, God-given rights. They include life, liberty, property, and the pursuit of happiness, which encompass freedom of speech, freedom of the press, religious liberty, the right to own property, economic liberty, and many others.

Such rights can be summarized in the following way: People have the right to do anything that’s peaceful. That is, so long as people don’t murder, rape, steal, burglarize, trespass, defraud, or otherwise forcibly interfere with the lives of other people, who themselves are pursuing happiness in their own way, they are free to make whatever choices they want in life, no matter how irresponsible, immoral, or dangerous others consider such choices to be.

LEC: [re: “endowed with certain fundamental, natural, God-given rights.] A natural, or God-given, right is an imaginary concept. Natural rights are not only nonexistent, the employment of such a concept to advance the idea of liberty is counterproductive. A right to property emerges from social customs and rules. Respecting the life, liberty, and property of others stems from pragmatism, and does not require a belief in a notion of natural rights. Respecting the sacrosanctity of another’s life and property will generally gain a similar respect toward one’s own life and property; this is not a righteous or charitable attribute of mankind, but a naturally inclined, self-serving instinct. By way of natural selection, those who engaged in cooperation were better fit to survive and propagate than were those using force and, as such, became our ancestors. See: The Origins of Virtue by Matt Ridley; The Moral Animal by Robert Wright; The Evolution of Cooperation by Robert Axelrod.

If natural rights to life were a fact, would it not seem strange that nature endowed only humans with those rights? Wouldn’t it make more sense that, if a right to life were natural, nature would have endowed all living matter with the same right? Even if nature were to be selective, it would seem, well, “unnatural” that it would accord such rights to only humans who are a rather recent species to emerge on the planet, while leaving the older species “rightless.”

The assertion of natural rights may have, at least to some degree, impeded the transgressions of kings; however, since such rights are imaginary, they boomeranged into a cascade of active transgressions that employ the same imaginary reasoning. On the one hand, humans are said to have a naturally endowed right to their property (passive rights), and on the other hand, they simultaneously have a naturally endowed right to another person’s property (active rights). Certainly it is contradictory for both categories of rights to exist, since they are mutually exclusive. However, when concepts are “cut out of whole cloth,” does it make sense to argue whose claim is more valid? It’s a short imaginary trip to go from a natural right to life and property to a natural right to food, water, housing, healthcare, and a minimum wage, all of which have become standard fare in today’s political world.

To claim a natural right to life and property to those who respect the life and property of others is needless, and to those who don’t, useless. Try asserting your natural right to life and property to thwart a thief or, for that matter, an IRS agent or any other government agent!

[re: “People have the right to do anything that’s peaceful.”] People don’t have a right to do anything, whether peaceful or un-peaceful, since such a right requires a grantor. Neither government nor nature can grant rights. People act in their own self-interest, knowing that acts have consequences. Shooting someone who is robbing a bank is not a peaceful act, but one may do so if he reasons a better consequence than simply handing over the money. However, if the robber is an IRS agent, he likely reasons that such a shooting will result in a consequence worse than handing over the money. The flip side of this depiction is that there are very few people who even consider robbing a bank because of the dire consequences of being ostracized from the community and permanently tagged as untrustworthy. The IRS agent, on the other hand, is quite comfortable committing robbery, because the consequences will not likely result in being shot or incarcerated, but instead result in praise by his superiors.

JGH: There is no doubt that most people in life are peaceful. Walk into a busy shopping mall on any weekend. You will see thousands of people, nearly all of whom are peacefully going about their lives without killing, robbing, or otherwise violating the rights of others. If disputes arise, most often they are settled without violence. If everyone in the world behaved in a peaceful manner toward others and if everyone amicably settled his disputes with others, there would be no need for government.

LEC: [re: “If everyone in the world behaved in a peaceful manner ... there would be no need for government.”] The need for government as a peacemaker is likely the view of most people and exemplifies how political propaganda can undermine one’s common sense and reasoning. From early childhood, we are inundated with newspapers, magazines, radio, TV, and parents that fill our heads with the notion that we need someone to run our lives and to take care of us. We are encouraged to participate in the political arena and debate the ideas on how government should best rule us. We memorize by rote the tenets of government and pledge our allegiance to a political regime for whatever it stands with little understanding of what is being said or what is actually meant. Songs are sung, books are written, and movies are made that glorify the wars and battles between us and them, wherein heroes are honored for dutifully serving their country and dying, while trying to kill someone against whom they have no grudge. We are swept away by the notion of the virtuous “us” and the evil “them.” The history books in our schools are filled with the details of every war, where political leaders of the time earn special recognition with statues and monuments to honor them. Most American children attend State schools, the very foundation of which is political, with a strict, State-approved curriculum. Consequently, it’s easy to see how so many become trapped for life and are unable to even consider markets, laws, justice, and societies that do not require political intervention. When trapped in the political box, ideas that challenge the usefulness of political intervention are shrugged off with little, if any, consideration as being too nonsensical or simply out of touch with reality to be taken seriously.

If governments got out of the way, people would settle disputes as they do with every other social need. Certainly there will always be those who plunder and kill, but a rational person would not volitionally replace a private thief and killer with a more barbaric one. Governments are responsible for most of the violence in the world, with violence caused by private villains being microscopic in comparison. Governments have not only killed and robbed more people directly, they have brought about untold violence indirectly by their prohibitions and regulations.

Without government, curtailing private killers and thieves would be a cakewalk, because the function of the market is to discover solutions to problems and to continue to improve upon them. The greater the need for a solution, the more profitable the discovery. Government is not only the least capable of solving problems, it is itself one of the problems, since it forbids competition.

In every society, there are those who choose to violate the rights of others with violence.

JGH: But we all know that life doesn’t work that way. In every society, there are those who choose to violate the rights of others with violence. There are murderers, rapists, thieves, defrauders, robbers, and the like. We also know that well-meaning people are often unable to arrive at an amicable settlement of disputes with each other.

LEC: [re: “well-meaning people are often unable to arrive at an amicable settlement of disputes”]. When well-meaning people are unable to cure an illness, they seek a physician; when they are unable to build a house, they seek a builder; unable to make bread, they seek a baker, etc., etc., etc., and when unable to settle a dispute, they seek those in the business of resolving disputes. Governments are the least capable of providing any service, since its quality of service and earnings are not related to customer satisfaction.

JGH: And we know that throughout history there have been brutal regimes around the world that have invaded and conquered other countries and subjugated their citizenry. That’s why we need government — to protect people’s right to live their lives as they want, so long as their conduct is peaceful. As Jefferson put it in the Declaration, “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

LEC: [re: “there have been brutal regimes around the world”]. When you refer to brutal regimes, which ones are you excluding? All regimes are brutal because that’s their nature; while they differ in the degree of brutality, none lack it. States only come about by way of brutality. “For every State where the facts are available originated by a process of violence, conquest and exploitation.” The Ethics of Liberty by Murray N. Rothbard. In Common Sense, Thomas Paine observes: “…could we take off the dark covering of antiquity and trace them [kings] to their first rise, we should find the first of them nothing better than the principal ruffian of some restless gang; whose savage manners or preeminence in subtilty obtained him the title of chief among plunderers; and who by increasing in power and extending his depredations, overawed the quiet and defenceless to purchase their safety by frequent contributions.”

[re: “we need government — to protect people’s right to live their lives”]. The claim that we need government to protect people’s rights to live their lives as they want is akin to a claim that we need a bank robber to protect the rights of bankers to do as they want. Thieves rob banks because that’s what thieves do - and governments plunder and use force because that’s what governments do. “None are more hopelessly enslaved than those who falsely believe they are free.” Johann Wolfgang von Goethe (1749–1832).

JGH: Thus, as limited-government proponents have long pointed out, there are three primary and legitimate functions of government: (1) to punish murderers, rapists, robbers, and the like; (2) to provide a court system in which people can peacefully resolve their disputes; and (3) to defend the nation from foreign invasion.

LEC: [re: “legitimate functions of government”]. The legitimate function of government is to do whatever is legal, and whatever is legal is whatever it says is legal, which makes theft and killing legitimate functions for its representatives, since they are legally exempt of the laws that if violated by others would make them criminals.

[re: “punish murderers, rapists, robbers”]. In free markets the objective is not retribution or punishment, but deterrence and restitution.

[re: “defend the nation from foreign invasion.”] Government intrusion into the lives of people is what all governments do; all are parasitic in nature, with a strong appetite to gain access to the productivity of more people. Native Americans tried to defend their nations against foreign invaders from France, Spain, Portugal, and England. So are those invaders now more righteous because they were successful in acquiring mastery over those who were unsuccessful defenders? Consider who you would defend if a foreign invader were truly trying to free the people of this country from the tyranny of their oppressive government.

The government of one law

JGH: Imagine that you’re living in a society in which there is a government that has enacted only one law — a criminal law prohibiting people from murdering others. As long as you don’t murder, you can do whatever you want. Would you feel that you were unfree in that society? Sure, the murderer might say that he’s not free because he’s being prohibited from murdering others. But genuine freedom doesn’t entail the right to violate the rights of others — it entails only the right to engage in peaceful activity.

LEC: [re: “government that has enacted only one law”]. A government that is able to enact one law will enact every other law it so desires by deriving them from the same source it was able to derive the [first] one. True laws emerge and are not enacted by edict, i.e., legislators. If genuine freedom doesn’t entail the right to violate the rights of others, then how can one at the same time endorse a government of any size or scope, since that’s exactly what all governments entail?

JGH: How and why would such a law come into existence? As previously pointed out, most people in life are peaceful but there is always going to be a small minority of murderers and other violent malefactors. I don’t know what the exact percentages are and I’m sure they vary from society to society and from year to year. But let’s just say, for argument’s sake, that 98 percent of people are peaceful and that 2 percent are murderers, robbers, rapists, and other violent violators of people’s rights.

Governments are instituted among Men, deriving their just powers from the consent of the governed.

While there certainly are pacifists in society, most people hold that peaceful people have a right to defend themselves from those who violate their rights. In the case of murderers, for example, most people hold that peaceful people have the right of self-defense — that is, the right to shoot back at someone who is shooting at them with the intent to kill them.

If the murderer succeeds in killing his victim, the 98 percent have an interest in making him pay for his crime. Otherwise, if he’s permitted to get away with it, he might well continue doing it and also induce others to do the same. So, the 98 percent have an interest in bringing the murderer to justice and making him pay for his crime, usually through incarceration and some times through restitution ordered to be paid to the victim’s family.

Over time, the 98 percent find that it’s cumbersome for each of them to have to apprehend the murderer, incarcerate him, or otherwise punish him, especially since the murderer might fight back. Many people simply lack the competence to engage in law enforcement.

LEC: [re: “Many people simply lack the competence to engage in law enforcement.”] Being competent in law enforcement is a political state concept. Fortunately, most people lack the competency to engage in law enforcement; otherwise we would all be serving time in prison. There are some 70,000 pages of new federal regulations promulgated every year, all being too complicated for even the best lawyers to understand. Nearly everyone violates a criminal law every day. See Three Felonies A Day by Harvey A. Silverglate. People are interested in preventing theft, not punishing thieves and, as such, purchase locks, fences, alarms, cameras, safes, guns, and dogs to deter private hoodlums and hire lawyers and accountants to deter public ones.

JGH: So, the 98 percent decide to delegate their individual right of self-defense, which encompasses finding the malefactor, arresting him, and punishing him, to a competent third party — i.e., a sheriff.

The 98 percent came up with what I believe is the greatest judicial system that has ever been developed.

Notice something important about a society that has a government with only this one law: It does not violate what is known as the libertarian nonaggression principle — the principle that holds that it is morally wrong for anyone to initiate force against another person. That’s because self-defense is defensive force, not initiatory force.

LEC: [re: “libertarian nonaggression principle.”]. The so-called libertarian non-aggression principle is not the principle of liberty, since liberty is a mindset of non-subjugation and being responsible for one’s own acts. A non-aggression principle is nonsense and meaningless. The very need to say that “self defense” is not aggression is evidence of its meaninglessness. Everyone can claim self-defense, since one’s imagination is most creative. One will take action deemed to be in one’s best interest and if such is to retreat from force, respond to force, or to initiate force, that’s what one will do. The consequences of one’s act may carry regrets that will be taken into consideration in a similar future circumstance.

JGH: The same principle applies as we add other criminal laws to the books, such as robbery, theft, burglary, rape, and fraud. Commit them and the official designated representatives of the 98 percent will come and get you, charge you, try you, and, if convicted, punish you. Otherwise, you’re free to live your life any way you want without interference by the state.

There is still another factor to consider, however: How do we know that a person really has committed a crime that he is accused of committing? What if the person who is being accused of the crime denies that he’s guilty? Should the 98 percent nonetheless simply accept the validity of the accusation and inflict punishment on the accused? That’s certainly the way things sometimes worked in the old Wild West, where “vigilante justice” sometimes prevailed. After a posse caught up with an accused cattle rustler, he was sometimes given a quick “trial” by the posse, strung up on a tree, and hanged by the neck until dead.

In medieval times, guilt was determined in another way — through “trial by ordeal.”

If the accused walked barefooted over red-hot plowshares without injury, for example, he was declared not guilty. Or he was forced to place his hand in boiling water and if God had not healed his wounds after three days, he was declared guilty.

Over centuries of the development of English and American common law, however, the 98 per-cent came up with what I believe is the greatest judicial system that has ever been developed for ferreting out the guilty and imposing punishment on them — one that entails judicial principles stretching back centuries into American and British jurisprudence.

Procedural guarantees

In the United States, before someone can be punished for a crime, he must first be formally notified of what he’s been charged with, and it has to be a criminal law that was on the books when the crime was alleged to have been committed — i.e., no “ex post facto” laws. The accused is guaranteed a trial in which he is presumed innocent. The state has the burden of proving his guilt beyond a reason¬able doubt, which is the heaviest burden of proof that the law has. He can confront witnesses against him and cross-examine them, sometimes with the aim of showing that they aren’t telling the truth. He can summon witnesses to establish an alibi and introduce other evidence consistent with innocence. If he wants to, he can remain silent, or he is free to testify in his own behalf.

He has the right to a speedy and public trial. He has the right to bail. He has the right to have an attorney appearing in court on his behalf.

Many of these procedural protections are subsumed under the term “due process of law.”

Many of these procedural protections are subsumed under the term “due process of law,” a term that is found in both the Fifth and Fourteenth Amendments. The term stretches back to the year 1215, when the great barons of England forced their king to promise that the government would not go against people in violation of “the law of the land.”

Under American law the accused has the right of trial by jury, which is perhaps the most profound procedural right in the history of criminal jurisprudence, one that is not found in the judicial systems of most other countries. The famous 18th-century legal commentator William Blackstone called it “the principal bulwark of our liberties.” Rather than have a tribunal or a judge determine his guilt, the accused can elect to have a group of ordinary citizens randomly selected from the community come into the courtroom, hear the evidence, and decide whether to find him guilty or not guilty.

Why is that so important? Over time, officials who serve on judicial tribunals and judges who preside in courts often become cynical and jaded and sometimes even implicitly operate as agents for the state. They see a person brought before them on charges and, within their own minds, they presume that he’s guilty. Moreover, it rarely occurs to tribunal officials and judges to question the morality or conscionability of the specific law with which the person is charged.

Jurors take their responsibilities, their oath, and their instructions very seriously.

Juries are different. My experience in twelve years as a litigating attorney is that jurors take their responsibilities, their oath, and their instructions very seriously. When they are told to presume a person innocent, they really do that. When they are instructed to acquit a person if they find that the evidence fails to convince them of guilt beyond a reasonable doubt, they do that, even if in their hearts they believe that the person really did commit the crime. Most amazing of all is that jurors in U.S. criminal cases at both the state and federal level actually wield the power to acquit someone for any reason they want, including a belief that the law that he’s being charged with is immoral or unconscionable.

Are people who have actually committed crimes acquitted by juries or otherwise released owing to procedural protections that stretch back centuries in American and British jurisprudence? Of course, but the reason that those procedural protections arose and ultimately became an established part of the law was to protect the innocent. Since punishing a person for committing an act that he didn’t commit is considered so abhorrent, long-established procedural protections represent the will of most people within the 98 percent to err on the side of caution, even if that means letting lots of guilty people go free. As Blackstone put it in 1765, “Better that ten guilty persons escape, than that one innocent suffer.”

Does all that mean that America’s judicial system is perfect? Of course not. No system devised by men is ever going to be perfect. Everyone agrees that America’s judicial system needs improvement and will always need improvement.

LEC: Your admiration of the U.S. judicial system seems strange when you know governments can’t do anything (else) competently. Of all the things that government can’t do, jurisprudence would be at the top of the list, since in addition to its normal incompetency, here it can’t even discern between a victim and a culprit. It would be irrational to expect justice from the biggest culprit of all. Competitive markets are always better at providing services than those provided by a monolithic system that prohibits competition. I suggest The Enterprise of Law by Bruce Benson.

JGH: Thus, the issue isn’t whether the U.S. judicial system needs to be improved. Instead, the issue is whether the American people are going to ditch a legal system that is based on at least eight centuries of development and evolution and ditch a governmental system that has stood for more than 200 years, both of which have, for much of that time, provided the greatest ambit of liberty and prosperity in history for multitudes of people, in favor of a system in which every single person is free to compete in the providing of private judicial services, law enforcement, and military defense.

LEC: [re: “provided the greatest ambit of liberty and prosperity”]. The concept of providing liberty is a self-contained contradiction. Liberty is not something that can be provided, since “providing” implies a master with superior authority to prohibit that which is not allowed. To allow someone the freedom to do X is to not prohibit them from doing X. Governments prohibit and require, and to describe the non-prohibition of some acts as “a great ambit of liberty” is descriptive of slavery, not that of liberty. Prosperity is a market function where volitional exchanges occur because each participant seeks to gain. Government intrusion into the market arena can only hinder the efficacy of markets and resulting prosperity. In spite of government, volitional exchanges, whether allowed or prohibited by government, will generally find ways to outpace the interference. Government not only impedes prosperity by its intrusions, it turns potentially productive members of society into parasitic members instead. This would include a good share of those employed by the government and all those being subsidized by the government. Within a political regime, the market must produce enough to sustain producers as well as non-producers, while being hobbled by bureaucratic prohibitions and regulations. In spite of the government, provided it’s not too oppressive, the market mechanism can generally improve overall living conditions.

It is unfortunate for mankind that government is so endeared by those who believe force is advantageous. The invisible hand of volitional, self-serving markets works to everyone’s benefit, and government’s intrusion can only deny people those benefits. Such endearment of political government is fading and in distant times will likely be looked upon as backward thinking, as has the belief in the geocentric universe that persisted for 2000 years. Political force will eventually succumb to reason and the volitional strength of human nature.

JGH: Anarchists respond, “Not so fast, Jacob! Your ideal concept of limited government violates the libertarian nonaggression principle and the principles of a free society in two major ways: first, through taxation and, second, by prohibiting people from establishing private, competitive police forces, defense forces, and judicial systems.”

We will examine those two objections in part 2 of this essay.

Note: The views expressed on are not necessarily those of the Mises Institute.

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