Doug Casey on Juries and Justice

Interviewed by Louis James, Editor, International Speculator

L: Doug, in our conversation last week, we touched on the topic of jury duty, and I could tell that you had a lot of thoughts on the subject. It's an important topic, since the jury system is, theoretically at least, meant to be the ultimate bastion of justice. But you spoke of how, although most people evade summons for jury duty if at all possible, for you it's academic, because you'd never be allowed to sit on a jury anyway. Where does that leave things – do you think the jury system is a good idea?

Doug: My view has always been that what really holds a society together is not the body of law enacted by a legislature or handed down by a king, but peer pressure, social opprobrium, and moral approbation. When somebody breaks a society's rules, a trial of some type ensues, to determine who's right, what harm has been done, who should be compensated, and so forth. Juries are one way people have developed for helping to determine these things. But I would argue that the state is not a necessary part of any of this.

L: You would probably argue that the state shouldn't be part of anything at all…

Doug: Yes, but it might be easier for many readers if we start with the minimal "night watchman" sort of state described by Ayn Rand. In her view, the proper role of government is to defend you from force (and fraud). That implies an army to defend you from force external to your society, a police force to defend you from force within your society, and a court system to allow adjudication of disputes without resorting to force.

I could live in a society like that – it would be a vast improvement over what we have now – and the jury system would be part of it. But, as you say, I'd go on to argue that juries and courts should be privatized.

L: Justice is a service for which there is a market. We'll probably have to come back to that, to explain how it might work – and why it would be better than what we have now – but, whether private or state run, you are agreeing that juries are a good idea?

Doug: Yes, especially when they're composed of independent thinkers, who aren't easily swayed by rhetoric, or pressured by groupthink. They are a good balance against the tremendous power of judges. And judges, these days, are either elected officials, which means they have to campaign like any other politician and are subject to the same perverse incentives any other politician is, or they are appointed, which is even worse. Appointees are usually just collecting political favors, and while allegedly more independent, are in many ways even less accountable.

So, in theory, a jury is a good counterbalance to the power of the judge. You need some way to weigh the facts and decide who's in the right. If all of that were on one elected or appointed man or woman's shoulders, there could be a lot of problems. But the way juries work in the U.S. today is far from optimal.

L: How so?

Doug: Well, the way juries are run today is really a form of involuntary servitude. You get your notice for jury duty and you either have to serve, whether you want to or not, or come up with excuses the state will deign to accept. Most productive people feel that they have more urgent priorities in their lives than helping to decide court cases, and a court case can go on for months. So the type of people that end up serving on juries these days are generally people with nothing better to do, or people for whom the trivial fee they pay is good money. Neither is necessarily the best kind of person to be deciding weighty matters, perhaps even life and death. In addition, many trials center on highly technical concepts, and forms of evidence, that these people are simply unqualified to interpret.

Worse, there's the jury selection process we mentioned last time, called voir dire. The notion is to give both side's attorneys opportunities to remove a few individuals from the jury who might be biased against their case, thus assuring a more unbiased jury. But in practice, it's an interrogation process by which the lawyers try to ensure they get a jury that will believe whatever they tell them. That usually means that anyone exhibiting the least bit of independent thinking, or who is prone to value justice over law enforcement, gets removed and will never serve on a jury.

L: My friend Vin Suprynowicz at the Las Vegas Review Journal says voir dire is French for "jury tampering."

Doug: He's right. And the result is that juries today are several standard deviations below what they should be. Any intelligent person has opinions, and in this day of the internet, almost any person's opinions are easy to find out. No matter which way your opinions line up, one side or the other in any case isn't going to like them, and you won't make it past voire dire. On the other hand, the qualities in a juror both sides will like to see are malleability and an easily influenced mind. The typical juror has no opinions other than on the weather, sports, and American Idol. People who think in concepts are weeded out as troublemakers. The typical juror is somebody who might be a candidate for appearance on Jay Leno's Jay Walking.

L: You could say it's the process by which the system assures that no qualified person serves on a jury – or the process by which we make sure to get the dregs of society's barrel instead of the cream of society's crop.

Doug: It also makes a shambles of the concept of a "jury of your peers." The type of people they could rope into jury duty wouldn't be my peers – they wouldn't even be the peers of the average person. If I were facing a trial, I'd much rather be tried by twelve people randomly selected out of a phone book than by the type of people who get selected for jury duty.

L: So, what you're saying is that juries are a good idea, in theory, but in practice, the jury system is so distorted, it's actually a liability against justice?

Doug: Right. If we're to have juries, they ought to be truly juries of our peers – people who can understand you and the facts pertaining to your case. But we're far, far from an ideal system. It's worse than arbitrary; given that most of those employed by the justice system work for the state, and that it's the state vs. an individual in so many cases, there's a huge inherent bias on top of the whole problem with today's stacked juries.

L: So, what would an ideal system look like to you?

Doug: In my ideal system, courts, judges, and even jurors would compete with each other to offer their services. They'd promote their proven records of intelligence, fairness, speed, and low cost.

L: I know what you mean, but the idea of private courts, judges and juries is probably so alien to most of our readers that the idea won't compute at all. To explain, justify, and illustrate how such a system might actually work would make a book out of this conversation. So let me suggest a book that already does a good job of doing just this, as well as explore other important ideas: Robert A. Heinlein's The Moon is a Harsh Mistress, which we discussed in our conversation on speculator's fiction.

In this book, the moon is used by Earth authorities as a penal colony. The prisoners have no laws – are not allowed to have laws – so the entire society is regulated by custom, or culture. There's a part of the book that describes effective justice being done in a lawless society – the hero, in fact, gets asked to judge a case by a gang of youths who are offended by a man from earth who kissed one of their girls without asking permission first. Both sides have to pay the hero to accept the case.

Doug: L. Neil Smith's North American Confederacy books also describe privatized legal systems. And for a full explanation, in a straight forward non-fiction context, I recommend Tannehill's The Market for Liberty. It's one of the two or three most important books I've ever read, and it can be downloaded as an audio book for free.

L: What do you say to people who argue that private justice services would be biased – they are for hire after all – and that you need the state to insure impartial justice.

Doug: I'd say that they must have had no exposure to the current legal system, which is anything but impartial and has very little to do with justice. If you separate justice and state, for one thing, it eliminates the ability of the state to prosecute phony, made up crimes, especially so-called crimes with no victims. If the state can't be party to a case, then there needs to be an actual victim to press charges. That right there would eliminate all the stupid, counterproductive wasted resources and trashed lives that result from the U.S.'s various wars against victimless crimes. No one could be prosecuted for having unorthodox sexual preferences, using unpopular drugs, drinking on Sunday, or smoking in a bar for smokers. Or for evading taxes.

L: If whatever governance system such a society had could not prosecute for tax evasion, that system would have to rely on collecting fees for services it renders… which would limit those services to ones people are actually willing to pay for. Instead, in the U.S., the justice system has become a machine for enforcing laws. It's not about defending people from force or fraud, but about imposing the will of the rulers upon the people. I hadn't thought of it in just this way before, but separation of justice and state would end the ability of any government to ride roughshod over the people it allegedly serves.

Doug: And it would focus legal action on actual matters of tort, and breach of contract, where it belongs. Further, ignorance of the law is impossible, when the laws are all derivations of the two great laws: Do all that you say you're going to do, and don't aggress against other people or their property.