Senate Judiciary Committee member John Cornyn (R-Texas) joined CBS News Chief Legal Correspondent Jan Crawford for a special edition of Washington Unplugged Wednesday, where he discussed Elena Kagan's (left) personal and political ideology and questioned whether she would be able to separate her ideology from the rule of law should she become the 112th justice of the Supreme Court. "She conceded that she's politically a liberal and a Democrat," Cornyn told Crawford. "The question is can she set that aside and assume the role of judge and decided cases without pursuing a political agenda." On day three of the Kagan confirmation hearings, Cornyn said that "what we don't know is how she will perform her job as a member of the Supreme Court. We're trying to get some measure on what kind of justice she will be." – Washington Post
Dominant Social Theme: It is necessary to have a judicial priesthood.
Free-Market Analysis: Will Elena Kagan be a good Supreme Court Justice? The spectacle of Supreme Court nominations goes on with most mainstream media queries being devoted to the dangling questions of whether Elena Kagan's personal views will have an impact on her judicial decisions. This is of course a kind of dominant social theme: "The US legal system has evolved as perfectly as possible, and should not be swayed by personal prejudice."
And yet is almost universally acknowledged that the system itself could be a good deal better and that it is often unfair. It is fairly easy to find comprehensive critiques of the US justice system on the Internet, many written by concerned lawyers and others involved in the system as it is. The issues are many and varied but they basically boil down to two areas – the system imprisons vast numbers of people lengthily and inequitably and is corrupt throughout. Here's an abstract from a paper "America's Justice System: Broken Oaths, Ignored Rights, Wrongful Convictions, Callous Indifference" that was presented at the annual meeting of the American Society of Criminology (ASC), Los Angeles Convention Center, Los Angeles, CA, Nov 01, 2006:
In recent years, confidence in America's judicial system has been repeatedly shaken as reports have surfaced of wrongful convictions and prosecutorial abuses that corrupt any semblance of justice. Nationwide, well over 300 people have been freed from lengthy prison sentences and death row after wrongful convictions due to single and focused investigations, malicious prosecutions, criminal misconduct, coerced false confessions, false eyewitness identification, junk science and other avoidable causes. Even with the creation of Innocence Projects and similar organizations focused on actual innocence, and increased attention to the problem of wrongful convictions, Americans are becoming more aware of the likelihood that thousands of innocents languish in America's prison warehouses; yet, sadly, most give little more than a passing thought to this epidemic until it strikes home. Errors in our system are becoming more visible and must become more intolerable in order to create a true justice system rather than just a system.
The question of course is how to "create a true justice system." The problem with current justice systems in the West, especially, though often not identified in even the most rigorous critiques, has to do with bigness and lack of privatization. In almost all developed nations, the legislature makes the laws, and then funds enforcement, prosecution, judging and finally the penal system itself. Thus the system is rife with conflict of interest. All of the individuals are on the same payroll except perhaps for the defense attorney. The pressures to convict are manifold and almost irresistible.
In America, as the judicial system has gotten more complex and costly, portions of the judiciary have been privatized. This only compounds the problem as privatizing a monopoly is simply a way of cutting costs and has nothing to do with making the system either more equitable of fairer. There are other problems, too, which go to the heart of the judicial system – what it is, how it has evolved and even whether the original system is actually functioning anymore, or whether it has been in some sense superseded by something else. What can certainly be said with some certainty is that if a measure of competition were introduced into the system, the level of fairness would go up and the corruption would go down.
There is nothing sacred about having the state run the judiciary, of course, and though most people in the West cannot imagine it, there are examples of private justice systems that have arisen in various countries around the world that seem to work rather well. One of the most remarked-upon systems (though still obscure for obvious reasons) is that of the Rondas Campesinas in Peru. Here is a summary excerpt from a paper on the evolution of these Rondas, entitled, "The Rise of the Rondas Campesinas in Peru" that appears on the website Journal of Legal Pluralism and Unofficial Law:
The rondas campesinas (literally, 'peasant rounds') in Peru are organs of community justice. Existing primarily in rural communities, they have a history of several centuries, but have undergone recent transformations in their functions and their relationship with the state. The rondas campesinas are formed by their own members in the peasant communities. Their primary objective is the fight against abigeas (cattle rustlers). To this end they were organized in shifts with compulsory participation by the men. They were found necessary as a result of the widespread corruption of officials, mainly the police and the judiciary who persistently failed to prosecute these criminals and who in many cases were suspected of complicity in their activities.
Their functions have been progressively expanded to include activities other than self-defence and nightwatch patrols. They have come to cover activities of daily life such as development projects, the control and prosecution of some officials, and the settlement of family, land and other disputes in a parallel administration of justice (Bonifaz 1991: 165). They were finally recognized officially in the 1980s. In the early 1990s government set up Self-Defence Committees or Armed Rondas Campesinas modelled on the popular rondas campesinas.
The paper goes into the background of these Rondas and their evolution, which indeed stems from the community itself and from landowners in the region. The Rondas also derive some of their form and legitimacy from Incan justice (Peru being a birthplace of the Inca) and survived Spanish judicial implementations from the 1500s onwards, functioning in fact as surreptitious and "underground" system. Here is another interesting excerpt from this paper:
According to various scholars, we can tie the genesis of the modern stage of the rondas campesinas to the organizations that emerged during the last century in the Andean haciendas. The landowners in the region established rondas de hacienda, small armies of their own workers, carefully selected and trained to defend the landowner's property against thieves or abigeos and also against other landowners. For this purpose the landowners chose their most trustworthy men since they also had to serve as a control force inside the hacienda (Jurgen Brandt 1987: 111), in the manner of the mitimaes of the Inca empire. The work of these ronderos was based solely on a personal service relationship without any form of payment. This system was essentially feudal and remained unchanged until the government of General Velasco Alvarado implemented the Agrarian Reform in 1968.
We can observe here, the evolution of a form of private justice that we have mentioned previously. The idea of competing forms of "common law" justice, and especially of justice that is not bound by "precedent" but is applied to suit each individual case, is certainly a different one from that which has evolved in the West, especially in Britain and America. But there is nothing necessarily that prevents it from working. In fact, we would go so far as to write that almost anything would be an improvement over current Western systems. In a commentary on an interview with Libertarian Judge Andrew P. Napolitano, we suggested (optimistically) the following:
We would like to see a more powerful application of common law make a comeback. When we write of common law, we are actually referring to a patchwork of law and courts that sprang up in Europe and especially in Britain. These courts had different standards for justice and different ways of arriving at a verdict. We see nothing inconsistent about this, as we believe that most justice is "rough" (one way or another) and that cases are unique.
The idea of competitive, marketplace justice is, of course, most controversial. (Any kind of marketplace competition is a bit controversial these days.) What one hears most of the time in response is that such justice would be "perverted" by the money that would flow into the system. We think just the opposite. As we understand it, the old common law courts could be subject to private compensation; we believe that private payments guarantee a better outcome than the current statist paradigm. What the West subscribes to today, is a system in which the same entity (the state and its appurtenances) makes the law, enforces the law, renders the verdict and prescribes the sentence. To us this process is fraught with conflicts of interest. The same person (the Judge) who is rendering the verdict is on the same payroll as the prosecutor. Talk about pressure to conform …
In free-market common law, the aggrieved party and putative offender might both pay a judge to render a verdict. The judge, who did this for a living, would have every incentive to present a fair verdict because such verdicts would add luster to his or her reputation and generate additional business. Additionally, common law has the added advantage that not everyone would take advantage of it, and that some would seek to settle grievances on their own. This would result in a very polite society (and has in the past) as no one would want to offend anyone else. Once upon a time, "manners" were far more elaborate and prevalent for a reason.
To read the full interview with Judge Andrew Napolitano, click here.
Common law systems of justice thrive when the state is less than omnipresent and when private morality and religion have expanded into the gap left by the diminishment of the authoritarian state. We have noted before that such systems tend to be "shame-based" rather than punitive in terms of Western approaches. Rather than vast periods of incarceration, the convicted individual is subject to punishments that may be psychologically painful, yet far less expensive and disruptive. In fact, sure enough, in the private Rondas system, we find that shame-based punishment is a feature.
There is, indeed, no parallel to the jurisdictional activity of the rondas. They not only resolve conflicts but also sanction those who commit criminal acts. The sanctions can range from the repossessing of stolen cattle or goods to physical sanctions (such as whipping and cold night-time baths). The objective is not only to punish the individual physically or economically but also morally. To do this, the castigated are usually forced to walk naked through town with signs hanging from their necks stating the acts they have committed.
The article we are quoting from extensively seems to have a socialist or communitarian slant, but nonetheless, we can observe clearly some of the evolutions that we have remarked upon – in terms of competitive justice that is privately based and arises to solve problems cleanly and efficiently. The West's vast law libraries and universities, seen within this context, are manifestations of the larger regulatory democracies that have taken hold in the 20th century. These democracies, in turn, are an outgrowth of mercantilist central banking and fiat money. Only societies with huge amount of paper money to fling about can afford the kinds of litigious, statist and authoritarian justice system that is prevalent today.
if the Western fiat money system collapses (as we believe it is in the process of doing), the surges of fiat money that have funded the corruption and evisceration of justice in the West, will gradually subside as well. The entire military industrial/policing structure that the West has created will come under increasing stress. Prisons will increasingly be privatized and after the predictable scandals (abuses, starvation, inmate violence), the privatization may gradually give way to some sort of wholesale market-oriented realignment of criminal justice.
Any reappraisal of the system of Western justice will take a good deal of time. But we think economic pressure and the gradually awakening of society to the degree of corruption that has invaded Western justice systems will gradually make a difference, especially if there is, eventually, a reconfiguration of monetary systems. Will there ever come a day when justice becomes repurposed, flexible and efficient once again? When "Supreme Courts" will be seen as hopelessly disengaged from the real purpose and provision of justice?
We cannot predict with certainty the timeline of such an evolution or even its arrival. But, apart from all the other benefits it would bring, we would hope that it would reduce or even remove judicial spectacles such as the one that is now taking place as regards Elena Kagan. No doubt, once confirmed, she will go on to make numerous judicial decisions. They may not be fair or correct, or even have much to do with practical law. But they will certainly be enforced by the State – so long as the funds are available and the system itself remains functional.