Political Justice

by Alexander J Illingworth

  Chapter VII

  The Institutions of Law

  Law may be empirical, but in the conduct of trials there are more issues to consider than the question of evidence. The size and makeup of juries, the selection of judges and the structure of courts to facilitate appeal are just as crucial to a just system as the attitude of the judiciary towards criminals themselves. Legal proceedings, after all, are an institutionalised practice derived from centuries of development and trial. In considering the proper conduct and structure of legal institutions, we must therefore take an informed view of both Man and the rationale behind the first legal institutions of history.

  When law becomes institutionalised, volumes of statutes and edicts become piled up over time. To walk into a law library at a British University alone is to see volumes of hundreds of pages, each dating back as far as the 18th century, containing the legal cases from each year. The purpose of such institutionalisation and the diligent maintenance of records is not for the sake of piling up a historical legal system which is impossible to manage, but rather for the sake of interpretation. Students of law are often forced to review the history of law as much as the state of present legislation. The school of jurisprudence itself, which centres on ethical interpretation of the law, is divided over the origination and authority of law, but based on our categorisation of society as communitarian, and criminality as an expression of violence against the community, the German Historical School of law has the most to teach us about the institution of law itself. The German School tends to place the most weight on society, and the German jurist Friedrich Savigny, in his refutation of the utilitarian jurists like Bentham, The Vocation of Our Age, argued that it was impossible for a nation to have any law imposed upon it without that law first being informed by the history and development of a particular civilisation. Roman law, for instance, which punished certain acts deemed immoral with ‘civil death’46 (that is to say, the denial of the right to own property or participate in democratic bodies) was fundamentally influenced by the fear of tyranny, the idea of corrupt men holding supreme power. Even under the emperors, many of whom could be described as tyrants, this attitude did not abate, at least officially. Each civilisation has its own aims and designs in the implementation of law.

  In the English tradition, which extols the right to be tried by one’s peers, i.e. juries, the judgement of private citizens is considered to be the most objective in considering the matter of guilt versus innocence. However, when we consider what the term ‘peers’ we must ask ourselves what a peer is. A peer is ostensibly an equal, but we have already concluded that society is not equal. In the British House of Lords, members are known as peers, since all lords are ‘peers of the realm’, that is to say, each lord has similar authority and are part of the nobility together, but that does not mean that they are equal to a citizen who is not a lord. In the Magna Carta of British history, which was formulated by Barons in an attempt to restrict the powers of their corrupt King John, the first cited right to trial by jury is recorded in the English Common Law tradition. But these Barons never would have wished to be tried by citizens who were not themselves Barons of the Kingdom of England. When they wrote of ‘peers’, they wrote of their fellow class. There is good reason why a man should be tried by a jury of his peers rather than a hodgepodge of any and all citizens of the nation. If we take the juries of ancient Athens as an example, which numbered some 500 men chosen by lot, such bodies were easily open to persuasion, and could easily condemn men who they disliked on social, intellectual or economic grounds. The case of Socrates is a great one; he was condemned to death on very little reason other than that the jurors disliked him.

  If we use the case of a member of the aristocracy being put on trial as an example, then we can see the value of genuine peer trial. If other members of the aristocracy were to try their fellow Baron, chosen as custom dictates by lot, then the chance of a jury of aristocrats who all knew and were sympathetic to their fellow Baron would be low. Also, since aristocracy would, in our previously conceived state, be an institution of great virtue, it would surely disgust any right-thinking man raised to the aristocracy to hear of evidence condemning a fellow Baron to the level of criminal. Since aristocrats have a moral duty to their country and to themselves, it would be in their best interests to ascertain whether or not their fellow is guilty, and to condemn him and remove him from their ranks if indeed he was. At the same time, they are free from the influence of jealousy of position by nature of the fact that they are Barons themselves. If men are to be tried by their peers, then they must be tried by their true peers — for not all men are equal, and it is therefore unjust to try a man with men and women who are not his peers.

  Regarding the potential corruption of judges and lawyers, the matter of advocacy cannot ever be conceived perfectly. It is only right that citizens should have access to legal advocates, and many nations have legal aid programmes to assist in this, though their reduction and abolition by some states in recent years can only go to prove the decline in the value of the science of law that modern societies are facing. The purpose of the advocate is to persuade, by oratory and evidence, of the guilt or innocence of his client. Legal proceedings are therefore, in effect, the best of both science and the subjective nature of political opinion. It balances the value of discourse on opinion on one hand with the irrefutable empirical science of evidence on the other hand, and with such closely and imperatively informed species of debate being used in the courtroom, it has the greatest capacity for truth of all the human exercises in discourse. Lawyers have no need to be corrupt, since it is in their interest to win cases, be it for a private individual or for the public; for lawyers operate in the manner of a private business and require a certain reputation in order to continue a successful career in advocacy. Corruption cannot be achieved by currency, since the lawyer knows that he will receive payment no matter who he works for, but there is potential for blackmail. It is to avoid the blackmail of lawyers into presenting poor prosecution or defence cases that certain legal gags on revealing information about ongoing cases exist, but with the introduction of cameras into courtrooms the potential for blackmail is again rearing its head. Those witnessing court proceedings must abide by the court’s rules regarding the information made available to the public, for unlike a parliament, a courtroom is much more sensitive and empirical. The opinions of those not associated with a legal case matter little, and the pressure of the public outside a case is best done without. The courtroom is not a television show, and the judge is there to provide his experienced judgement independently of pressure.

  The selection and empowerment of judges ought to be in keeping with the other principles of society that we have laid out; that is to say, they should be hierarchical. Judges are often former lawyers, but they should be selected from lawyers who have proven themselves to have tried a variety of cases and have consistently and successfully found the truth in all manner of such cases. If virtue is the cause for hierarchy, then virtue and truth should be the requirements for legal hierarchy as well, especially with regards to the successful protection of the national community. These judges in turn, who would start out as district judges, through experience and proof of ability for consistent sentencing, may rise to higher positions in the Appeal Court and Supreme Court, or whatever national equivalent might exist in each nation, based on its legal traditions.

  Ultimately, the appointment of judges should function in a similar way to the appointment of aristocracy, especially if the highest-ranking judges are to be given a seat in the upper chamber of parliament for the purposes of adding expert legal opinion to public discourse. Virtue, experience and contribution to the national community and safety of the people are paramount in the conduct of law, as in other areas of society. Institutions, such as the aristocracy, judiciary and their associates, can act for the most part as self-regulating bodies so long as those who are raised into their upper echelons have an interest in maintaining stand
ards, and following a set of professional regulations which define the integrity and reliability of each institution. When corrupt individuals do work their way into the system, proper means ought to be in place to remove them, if, in keeping with the legal profession’s empiricism, they can be proven to be a burden or threat to the community. Intra-legal policing is not just something to be conducted in wider society, but within institutions, especially the legal institutions of government, given their importance in protecting the rights and freedoms of the people which they exist to serve.

  Chapter VIII

  Pardons

  We shall finally briefly consider whether pardons, reprieves and commutations have any role to play in the conduct of law. It seems reasonable that the potential for clemency should not exist, and to bestow the power of pardon or remission onto any member of any political institution is both unnecessary and potentially tyrannical. Granting the power of pardon undermines the judiciary, since it assumes that the judiciary may not always do a good enough job, and another individual (often not associated with the judicial branch of government) has greater knowledge of judicial understanding. It also goes without saying that pardons and remissions may be used by the individual with that power to show favour to certain individuals or groups. It is open to corrupt influence and false representation by individuals or the populace at large.

  The sentencing of criminals is placed in the hands of the judicial branch of government in order to prevent the other branches of government from showing favour. To allow a President or King the overarching power of pardon is to defeat that point. If an individual is not happy with the sentence of a judge, an appeals process within the judicial system exists for that reason. However, appeals exist for the purpose of ensuring that the human capacity for error is removed as far as possible, not to empower the criminal. Evidence not taken into account or a lapse of reason from a district or High Court judge may be considered by appeal to supreme judges, who amend sentences accordingly in line with their own experience. In cases where new evidence comes to light demonstrating a convicted man’s innocence, then the judicial system usually allows the victim of miscarriage of justice to be freed. There is no reason why any institution or individual other than those within the judicial system should have any control of sentencing or remissions whatsoever. It is a ridiculous notion.

  With regard to posthumous pardons for those condemned for crimes which a later society considers no longer worthy of punishment, these are equally ridiculous. Whether or not societal attitudes have changed, we must appreciate the historical context in which certain actions were deemed vicious and criminal. So for instance, whilst it may seem popular to grant Oscar Wilde a pardon for his crimes of indecency in the 19th century, such acts were considered abhorrent and immoral to the vast majority of the population at the time, and the context of the time deemed people like Wilde to be a threat to the community. Just because he would not be viewed so today by many people does not mean that his imprisonment should also be consider wrong in the context in which he was condemned. Therefore, posthumous pardons are mostly tokenistic and favourable to interest groups. They have no practical or moral purpose whatsoever.

  Considering pardons when faced with the overthrow of a tyrannical regime, pardon is not the correct term here either. When political prisoners of an oppressive regime are freed, and that regime is replaced with a new form of government, the acts, laws and edicts of that tyrannical regime are rendered null and void. The system of government in transition from tyranny to benevolent government is not consistent, and since there is no consistency between the two governments, the two governments are therefore not the same. The benevolent government cannot take responsibility for the actions of the tyrannical one, since it does not persecute political opinions. Therefore, political prisoners and other such persecuted individuals should regain their freedom, but this is not pardon — it is merely the logical restoration of rights which were removed by the destructive forces of evil.

  We can therefore safely conclude that in a state which balances the power of government and people, and ensures that certain rights are maintained, pardons are neither necessary nor are they practical, and serve only to undermine the rights and protections which a completely libertarian society deserves and needs for its survival.

  Book VI.

  Property and Technology

  Chapter I

  Introduction

  In this final, and perhaps most adventurous division of our enquiry, we shall consider the question of property, specifically the difference between equal property or lack of property, and private property. The defence of private property is a path well-trodden by conservatives and classical liberals alike, so what we shall not be endeavouring to do is parrot those same facts and logical deductions which have already been made time and time again by those before us. Chances are that those reading this are already well acquainted with the arguments in favour of private property, and do not need re-educating in those arguments. In this new technological age, the nature of income and property are set to change, and the ability of the people of the world to prevent this is not likely to be as great as some conservatives would hope. In confronting technology and what it means for our rights and property, we must put aside the kneejerk Luddite reactions which disdain technological advancement, and instead ask: Can technology really do good? If yes, how so? If not, how can evil be prevented?

  It is absolutely imperative that any future relationship between technology and property is not used by future governments to enforce false notions of equality. A technological future must retain the fundamental tenets of free societies, as part of which we mean the existence of wealth inequality. Before we can consider the impact of technology on property, however, it is worth making a few fundamental principles about property in a free society very clear, and putting the more traditional radical leftist, or Marxist conceptions of property into perspective in order to allow for a better understanding of how technology could be used to bring about a socialist dystopia.

  In delineating a ‘genuine system of property’, radical thinkers like Godwin envisaged a future in which human generosity and kindness was viewed as a natural extension of moral law. That is to say, whether or not I give a loaf of bread in my possession to a poor man who needs it more than me is not a question of personal choice, but a moral imperative which every citizen within his means ought to do without question. The creation of such a society in both Godwin’s utopian future, and Marx’s communist future relied upon a great deal of change in education and social attitude. Indeed, the concept of economic collectivism is seen as early as Plato, who famously advocated the common ownership not only of property but also of wives and children in his Republic.

  The intellectual and moral ‘improvements’ believed to lead to the equality of property thought to be just by Plato, the natural result of intellectual evolution by Godwin, and the moral purpose of government by Marx, are not merely unnatural but impossible to achieve within the realistic possibilities of human improvement. Whilst we have asserted previously in our discussion that perpetual self-improvement is a reality within and remains the goal of human life, it is arguably not an improvement to bring about equality. For the purposes of our discussion henceforth, we shall therefore assume that the age-old mantra of equality being ‘attractive on paper but impractical in practice’ is in fact false. What should be said about equality and ideologies that advocate it is that it is ‘unattractive on paper and impractical in practice’. As long ago as the publication of Thomas Moore’s Utopia, systems of common ownership have been satirised. The mere fact that many are beginning to become more attracted to the idea of equal property is no reason to believe that this time around it ‘might just work…’

  Chapter II

  Property and Income

  At least in terms of legal status, property exists as a thing-in-itself and requires no subjective value, since one object legally owned by one man does not need the experience of
another man to prove that he owns it; the mere fact that a transaction or construction has occurred is enough. When political philosophers discuss property, often they do so through the means of capital, which is a subset of, but distinct in some ways from property as a whole. In our discussion we shall assume that capital, or the means of production and transaction, is represented within the general scope of ‘property’ as a comprehensive concept. Property itself relies on exactly that, however: transaction, before it can properly become the property of an individual. For the buyer, property is that which legally becomes ‘his own’ once he has purchased it up until the point that he sells it on to another individual; for the craftsman, the creation of a piece of work is his until he sells it, but a transaction must have had to be made in order for the craftsman to obtain the materials with which he constructed his work. Property therefore, in a general sense, relies upon transaction, and transaction relies upon the existence of money. When considering the nature and use of property, we must therefore also include money, and the money that almost every member of society receives: income.

  Today, the classical qualification of property is hard to apply to the nature of modern states, especially in Europe. Many governments with social programmes own a great deal of property and lend it out to their citizens (and in an increasingly large number of cases, non-citizens) out of the notion that every human being has the right to housing. Who can we truly say owns houses like these? Legally speaking, it is the government, but if one asked the inhabitant of a council home in Britain whose house one would surely hear the answer ‘mine’. The reality of course is that free societies should allow their citizens the right to own a house, but this does not make those citizens automatically entitled to the ownership of a house. The system in place in many Western countries today deludes the home ‘owner’ into believing that the house lent to him by the government is his own, whilst in reality the government would have the right to turn them out in an instant, and whilst this would surely cause great uproar, such discontent only derives from the now deeply-ingrained belief that it is a ‘human right’ to have somewhere one is guaranteed to live. It is not a human right, though perhaps it can be justified as a moral right.