Commentary: Kill The Precedent!
By Davi Barker
March 10, 2014 - If that headline seems shocking, read it again. It does not say what you think it says. The legal concept of the precedent, whereby judicial decisions in one case are binding upon future cases is utterly flawed and should be abolished. In fact, the entire way Voluntaryists think about Stateless justice needs to change if we ever want our ideas about restitution to reach more than forum trolls. But if that headline still offends you, just pretend it says “Bitcoin, Pizza, and the Future of Justice.”
It is baffling to me that Voluntaryists acknowledge that a one-size-fits all solution will always fail, while some propose that the zero-aggression principle is a one-size-fits all solution. It is as if they would be satisfied if the State’s only role was to enforce non-aggression. I humbly submit that this too would fail.
We often debate about a little girl who trespasses to pick flowers, or a mother who steals bread for her starving family, or intellectual property, or peaceful parenting, and on and on. Like it or not, the boundaries of the zero-aggression principle are blurry, and that means there will forever be a diversity of interpretations, and strongly held convictions. To enforce a singular interpretation would require a State.
The problem with these debates, and the reason they progress nowhere, is that those having them are still thinking like Statists. They are trying to codify the zero-aggression principle into a perfect statute that resolves all disputes. They are effectively saying, “I articulate non-aggression this way, and so should everyone else,” when all they really have the authority to say is, “If I were a judge overseeing that dispute, I would decide this way.” If we want to discover the actual fruits of these ideas we need to stop pretending to be Stateless legislators, and start thinking like Stateless judiciaries.
It’s no coincidence that scales are both a symbol of justice and of commerce. Whether it’s a merchant and a customer negotiating a sale, or a judge deciding the restitution between disputants, the scales represent the balance of debt between two parties. What I’ve never seen Voluntaryists acknowledge is that a judge’s decision in a case is a price, and therefore should be determined by the price mechanism and not by statute.
Using statutes to define restitution is akin to a central planner setting prices, and using precedents to bind future decisions is akin to price freezing. Price discovery, and by analogy justice discovery, requires the freedom to fluctuate. Therefore, understanding the utter failure of government judicial systems requires the same analysis as the utter failure of centrally planned economies. For Stateless justice to function judges must have the autonomy to nullify any statute, and to kill any precedent. Judges must be able to decide cases on an individual basis, just like merchants set their own prices, and customers decide their own purchasing habits. As uncomfortable as that may sound, the same market pressures that drive commerce toward lower prices, and higher quality will also push justice toward greater balance.
I think this idea causes discomfort because people are accustomed to some stability in the judicial process, and they think statutes and precedents provide that stability. Even if it’s arbitrary, and officious, at least it seems predictable on paper. It’s similar to the discomfort someone accustomed to absolute communism would feel if the government stopped providing free gruel, and allowed merchants to sell gruel at any price they wanted. Sure, government gruel was particularly disgusting, but at least it was dependable.
Government justice is entirely collectivized, and not subject to any price mechanism. So, if the cost of incarcerating a criminal exceeds the damages he caused, then that’s not seen as a miscalculation. Instead, it’s a jobs program for prisons, a money trough for lawyers, an empty campaign promise for legislators, and in the end a tax bill for the victims. On the other hand, Stateless justice has no price point yet. All the theorists who have described how Stateless justice might work are essentially predicting the price of the first bowl of gruel sold after communism.
A great example of a price mechanism emerging from a collectivized service is Bitcoin. Government money is a centrally planned endeavor, and it suffers from some predictable economic miscalculations. It reportedly costs 2.4 cents to make a penny, and 11.2 cents to make a nickel. Alternatively, crypto-currency had no price point at first. The first purchase made with Bitcoin was famously two pizzas that sold for 10,000 btc, worth just over $6 million today. The price of Bitcoin, and other cypto-currencies, is not set by statute, or bound by precedent. The price is a custom, which constantly adapts to new circumstances, and adjusts to the needs of every transaction. It is the aggregate of millions of constantly fluctuating price points. This is how price discovery operates in a free market, and ultimately how prices stabilize.
We don’t know what Stateless justice will look like, just as we don’t know what the price of Bitcoin will be in a year. Anyone predicting these things is merely expressing his own subjective value. Whether or not the market agrees with him remains to be seen. In order to discover what a functioning Stateless justice system looks like, we need to stop arguing and start actually settling disputes. Because justice isn’t going to be defined by a dozen Voluntaryist intellectuals writing statutes. It’s going to be discovered in the aggregate of a thousand Voluntaryist judges settling cases between Voluntaryist disputants, and the groundswell of opinionated Voluntaryist commentators that follow. Before there can be an aggregate, Stateless justice needs it’s $6 million pizza. At first it’s going to be volatile, and it’s going to be unpredictable, but if we’re going to change the world we’ve got to be willing to do something unprecedented.
