UNARCHY - BASIC DESCRIPTION
(Revision 5, Aug97)
Unarchy is a simple system of justice based on common sense and conscience which ensures that everyone is treated fairly.
The primary intent here is to propose unarchy as a replacement for our current system of justice which is cumbersome, unreliable - if not capricious - and expensive.
The secondary intent is to propose unarchy as a replacement for all government since ensuring fairness for everyone should be the only function of government.
Under unarchy there is only one law, hence the name. The law is, "Be good." Whether an activity is "bad" or "wrong" is decided by majority opinion. Responding to the familiar objection, "But everybody has a different idea of what's right and wrong!", the contention is that the vast majority of us are in fundamental agreement. Almost everyone, even those who have never heard of a thing called the Golden Rule, knows it is wrong to do something to someone he wouldn't want done to himself.
The cornerstone of unarchy is large, randomly selected juries - large enough to ensure that the jury represents the current opinion of society at large. Guilt or innocence is determined by simple majority vote of the jury. Any attendant punishment also requires a majority vote.
An accuser brings charges against the accused. Within a very short period of time - before memories fade, before evidence is lost or concocted, before parties begin to believe their own lies - the case is heard by a jury. Ideally this will be within a few days of the incident.
There are no judges. While there would be no law against lawyers (of course), there would be no need for them. In all probability, a jury would be more skeptical of the party who brings along a person whose profession is to obscure and twist facts.
The accuser and accused prepare and present their own cases. They supply evidence and witnesses. No evidence is inadmissable. Members of the jury may submit questions to anyone involved in the trial. Indeed, the trial is not over until every question from the jury is answered. A juror bases his decision on the evidence presented and his own common sense and conscience. The jury may find reason to rule against the accuser and determine his punishment.
UNARCHY - FURTHER DISCUSSION
Almost without exception, a discussion of unarchy provokes wild opposition. Most people, it seems, fear, or at least do not trust, majority opinion. (Note the imbedded paradox.) They decry "mob rule" and the "tyranny of the majority."
The contention here is that the majority is, in fact, very reasonable. Be honest - what percentage of the people you interact with daily try to cause you harm? Virtually all of us are in fundamental agreement regarding the wrongness of murder, assault, theft, etc. If majority opinion does not actually define right and wrong, there is nothing that serves as a more practical guideline.
In any case, if the words "tyranny of the majority" sound frightening, could anyone sensibly defend "tyranny of this or that minority"? Notice that unarchy is a manifestation of "small d" democracy, pure and simple.
Unarchy replaces literally millions of existing laws. Nobody could list more than a handful of these laws, and even then only very imprecisely. Each law is some variation on "don't be destructive to someone's body, mind or property" - or, if not, shouldn't exist in the first place! As it is, we already base our actions on our own senses of right and wrong.
Unarchy eliminates all legal technicalities and loopholes. It eliminates "word game" justice. When people learn that they can't "get away with" it, they just might stop trying. If and when this happens, the justice system would fall into disuse - a great day for everyone!
Even without government, unarchy would ensure that the environment is protected to the precise extent people want it protected. Cars would be built with as many safety features as people want. Children would be educated to the precise extent people think they should be educated. And so on.
UNARCHY - SOME NUTS AND BOLTS
A 2-step jury system may work well. A "pretrial" jury could decide if the case is frivolous or whether it deserves to go to trial.
The trial takes place within a few days of the event in question.
Juries would be selected purely randomly to ensure that they represent society at large. The required size would be calculated using methods of probability and statistics. It may be in the tens or hundreds. A slightly more "radical" idea would be to open up the trial to any and all concerned individuals - like voting for president. With modern technology, there are alternatives to gathering the jury in the courtroom. Open to debate is whether the jury needs to witness the whole process of accusation and rebuttal. Perhaps a written, audio or video transcript would be sufficient, or even preferable.
There is no formal system of appeals. Although there would be no law (of course) against bringing up a case again, there would hardly be any point in it.
There's no reason why unarchy could not eventually be handled by private industry. An accuser would simply pay to have his case handled by the justice company of his choice based on reputation, price, etc. It seems likely that a jury would demand that the guilty party pay the costs of the trial as part of his punishment.
UNARCHY FREQUENTLY ASKED QUESTIONS (FAQ)
Q. This idea of unarchy is so wacky and doomed; I' m still not sure if you are being serious or just having fun.
A. I am completely serious about the unarchy idea. That doesn't mean I lose any sleep over the prospect of it not being implemented tomorrow or in my lifetime. I'm just putting the idea out there.
Q. Can you be serious when you say that the notion of right and wrong varies only slightly from person to person???
A. You interact with many thousands of human beings on a weekly basis, just by hopping in your car and going grocery shopping, for example. With hardly any exceptions you don't kill each other, you don't assault each other; you don't rob each other; you don't run each other off the road; you don't scream obscenities or call each other offensive names. Sure, these things happen, but quite infrequently in the big picture. It's clear to me that we're pretty much on the same "right and wrong" wavelength. And even if somehow I am wrong about this, it doesn't weaken my claim that the fairest system of justice averages together everyone's opinion.
Q. But I have to know in advance if some activity I am considering is illegal!
A. Who can seriously claim to keep track of every law of every jurisdiction he's ever visited or will visit - national, state and local? Nobody lugs around the Federal Register (just for a start) to keep himself out of trouble. It'd be a little hefty - between 50 and 90 thousand pages of new regulations are added every year.
Assuming you have absolutely no concept of the Golden Rule, under unarchy you still would know what activities people in your society are getting punished for just by following the news or talking with people. You'd have to be pretty unlucky to be the very first person brought to trial for a given activity - and even then, the jury would take that into consideration. (Actually, you'd have to be quite brilliant to come up with a brand new crime.)
Q. Isn't unarchy old hat? What about democracy as practiced in ancient Athens?
A. They had a council of 500 men which prepared laws, and then the assembly of male citizens voted on the laws. The modern analog would be that laws are proposed by Congress and all citizens get to vote on them. (There's no reason that couldn't be done, by the way. It at least be a step in the right direction.) Unarchy dispenses with laws.
Q. Is the accused person compelled to appear in court?
A. It would seem pretty absurd for him not to be there. If you've got a case against somebody and he doesn't cooperate, open the yellow pages to Crook Nabbers, Inc. and hire them to haul him in. Remember, you'd better have a darn good case against the guy; otherwise the jury will be awarding him damages that you'll have to cough up.
Q. What if he refuses to answer questions?
A. A juror may read into that what he will, according to his own common sense.
Q. What about lie detector tests?
A. Jurors may be very interested in seeing the results of these - or maybe even observing the process. A juror may conclude what he will regarding the test results, according to his own common sense.
Q. Is a person compelled to serve on the jury?
A. No - under unarchy, there are no rules, right? There are several possibilities, however. Perhaps jury selection would take absenteeism into consideration and overbook the jury so that it is sure to end up with enough people. Perhaps the public will take their justice system so seriously that they would punish someone who refuses to serve. Perhaps non-participation will be viewed as a vote for the status quo, as in our elections.
Q. Are witnesses compelled to testify?
A. No. See above. But, as with jury duty, a witness who doesn't appear might be subject to punishment. In any case, if evil prevails because people don't want to get involved, then evil is what we get. If we decide we don't want evil, we get involved. Unarchy is self-regulating - it yields the precise amount of justice that people want.
Q. Don't people have better things to do with their time?
A. The main incentives for serving on a jury are a) the chance to do something beneficial for society, and b) it would be as interesting and entertaining as almost anything else we do - such as watching fictional struggles between good and bad on tv and in the movies. (Note that there are tv networks that make money off of people's enthusiasm for watching real court cases.)
Q. Will jurors be paid?
A. Maybe, although I wouldn't think it's necessary. See the previous answer for non-monetary incentives. In any case, this can't be a valid concern considering the paltry compensation for jurors in our current system. Imagine trying to support a family of 4, say, on the current $20 to $30 a day. Also, keep in mind that under unarchy, your service on one case might be measured in minutes rather than days.
Q. Without plea bargaining and other legal games, wouldn't we be swamped with court cases? Wouldn't unarchy drag everybody away from doing their regular work?
A. Under unarchy, court cases will go much more quickly. How long could it take to read the trancript (watch the video, or whatever) and make a decision? An hour maybe? I served on jury duty once. It lasted a month. There were over 40 witnesses called. (Incidentally, not one of them offered a single shred of evidence relating to the charges.) In that month we could have easily handled hundreds of cases. It took 2 full days to extract the tiny, completely-rigged jury of 12 from a not-quite-so-rigged pool of 85. Wouldn't it have been easier just to go with the full 85, present the evidence, and take a vote?
As claimed in the proposal, since unarchy involves no legal game-playing and the justice is near-instantaneous and near-infallible, people will stop trying to get away with what they know is wrong. The number of court cases should decline drastically.
Q. But we have to have lawyers because a lot of people are shy about speaking in front of an audience.
A. The jury would surely be aware of the stressful atmosphere a trial creates. They would take that into account. If you need someone's help to present your case, by all means, bring him. Maybe a better solution to the stress problem is allowing ample time in private for written answers to questions. It's not clear to me that it is necessary or desirable that the jury witness the whole process of accusation and rebuttal.
Q. Who selects the juries?
A. For the time being that could be a government function. A bureaucrat could be trained to pick names out of a fishbowl. Ultimately, I envision competing justice companies.
Q. Who pays the costs of the trial?
A. The accuser pays a justice company to handle his case. If it's not important enough for him to part with some of his money, it's not very important, is it? A jury that finds a person guilty and deserving of punishment would surely make him reimburse the accuser for his trial costs.
Q. Who carries out the punishment?
A. Once again, maybe government for the time being, but ultimately private industry. This concern will evaporate when we start thinking in terms of restitution rather than punishment.
Q. Who pays for the prisons?
A. Again, I would rather see wrongdoers make restitution than do time. Whether we go in that direction is up to the majority. If we have to have prisons they can be supported by some combination of public contributions, prisoner assets and prisoner labor. Your contributions wouldn't have to be monetary, by the way - donate old clothes and furniture. Supermarkets could donate slightly out of date food. Prisoners could grow some of their food and build and maintain their housing. (I can imagine prisons that even turn a profit, but whether this is desirable is debatable. Note that there is a U.S. Justice Department program called Prison Industry Enhancement that lets private companies employ prisoners.)
Under unarchy, there should be less need for prisons - maybe none eventually. Surely, people wouldn't be jailed for what they do to themselves. White collar criminals would probably be dealt with more appropriately - such as being forced to pay restitution or surrender property - rather than be sent to prison. According to the current majority sentiment, most murderers would be executed.
Q. How large an area does a jury represent? What if the locals favor tree-cutting, say, but there are many more outsiders who oppose?
A. In all cases, the opinion of a larger majority takes precedence over a smaller one. It wouldn't be difficult to implement a system that allows an accuser to bring a case to a larger segment of the population if he's willing to pay for the bigger trial.
However, this may be irrelevant to the issue at hand, which is simply one of property rights. It's hard to imagine a majority punishing someone for cutting down his own tree. If you don't want him to do it, you are obliged to give him an incentive not to do it, such as buying it from him. If that sounds simplistic, note that private organizations are buying up rain forest acreage right now.
Q. But this unarchy is all so complicated, like figuring out jury sizes and an agreeable method of picking juries, etc.
A. Unarchy is simply large juries that use their own consciences - no laws, lawmakers, federal regulators, judges or lawyers. Whatever the precise implementation, it would have to be thousands of times simpler than what we have now.
Q. How can unarchy replace government? As long as there are Roads, we need government!
A. I'm bemused by the frequency with which people bring up Roads when faced with having to justify government. I don't see why private industry couldn't provide Roads, but if the majority wants a monopolistic company to handle them, so be it. If they want to call that company "government", so be it.
Q. How would a radical idea ever get a chance under unarchy?
A. As under any system, you have to put effort into convincing people your ideas are right.
Q. What about moral issues such as abortion, assisted suicide or homosexuality?
A. Under unarchy, instead of arguing about an issue until the end of time, there would be a trial. Someone who objects to abortion, say, would drag the woman or the doctor to court. The jury would decide if anyone did wrong and what the punishment is. It very well might be the accuser who is punished for causing so much trouble. From then on, people would bear the court decision in mind when considering these actions.
The contention here is that while people may be uncomfortable with certain activities, they wouldn't need to see those activities punished - especially when the given activity doesn't directly touch their lives. Morally objecting to something and dishing out punishment for it are two different things.
Q. The majority is not always right. In the 1800s most people thought blacks should be slaves and women shouldn't vote. We now know the majority was wrong! Sometimes it takes a few courageous individuals to lead this country where it needs to go.
A. No system of justice can rectify past injustices. Under unarchy, courageous individuals would still be more than welcome to set the masses on the right track.
About slavery specifically, do we know for sure what the majority thought? Were the opinions of the slaves counted in? Did you know that slavery was dying of its own accord until it received a shot in the arm from the invention of the cotton gin in about 1819?
The bigger issue is, how can any group of people know what "right" will be a hundred years in the future? Using the right to vote as an example, should we revoke men's right to participate in decision-making now based on a hunch that a hundred years hence they will be stupefied that we ever allowed it? How's your crystal ball working?
RELATED LETTERS TO THE EDITOR
These letters make many of the same points presented above; perhaps some will do it more convincingly.
Title: A system that works?
To: The Washington Times. Published 29Jun97.
While we're falling all over each other congratulating ourselves on how well our justice system works in the wake of the Oklahoma City bombing trial, I have a few questions.
Just how well does it work, if we have to hold our collective breaths hoping, wishing and praying for the system to produce a simple, common-sensible decision? (And a related, philosophical question to mull over: If the correctness of the decision is gauged by popular opinion, why not just go with popular opinion?)
Exactly what was so complicated or difficult about the decisions that they couldn't have been made in a few hours 2 years ago?
And why will we drag our feet a few more years before carrying out what we all agree was a proper and correct decision?
Title: Re: Curbing verdicts that defy the law.
To: The Washington Times, 28May97. (Not published.)
In his editorial "Curbing verdicts that defy the law" (28May97), Bruce Fein expresses his agreement with the recent ruling which gives judges some power to remove jurors who intend to cast their votes without regard for the law. He writes, "If jurors were routinely permitted either to acquit or convict because they disliked the law, the defendant, or the defendant's victim, then the rule of law would crumble. Justice would be reduced to whimsical or bigoted ad hoc determinations by jurors as to what they believed was fair in the circumstances."
Fein's claim sounds plausible, but it is hypothetical; it is not grounded in reality. If some law is routinely disregarded by most of the members of most juries, it's obviously a "bad" law. It is not in accord with current societal values. It shouldn't exist. (By the way, it should be mentioned somewhere in this discussion that juries do not actually examine the law. They decide whether or not the defendant is guilty of charges. Presumably, a charge represents a violation of some law. Presumably...)
Yes, it exasperates us when one or a few jury members hang the jury when it's "obvious" that the defendant is guilty, but that is a different problem altogether. The blame goes squarely on the shoulders of the people who devised the rules of the game. Requiring unanimous votes is idiotic - I can't find a more polite term. Where else in life do we require unanimous agreement before taking action?
Fein is worried that a juror may take fairness into consideration. Horror of horrors, we can't let that poison our justice system, can we? During the jury selection process, I always inform the judge my decisions as a juror will be based solely on common sense and conscience - not laws, not legalistic maneuvering and wordplay, not the judge's instructions. And under these conditions, I was even selected for a jury once.
Although supportive of the recent ruling, Fein is not totally comfortable with the whole situation. "Discreet nullifiers [that is, jurors who disregard the law] will be permitted to nullify while the self-confessed [nullifiers] will be discharged." He closes by asking, "But are there any superior alternatives?" He should read this newspaper more closely; it has printed such an alternative. Twice, even. Here goes again.
Proposal: Our system of justice shall be based on common sense and conscience. The only law is, don't do to others what you wouldn't want done to yourself. Juries are randomly selected and big enough to ensure accurate representation of the views of society at large. Simple majority votes decide disputes and set the punishment without judges or lawyers. The end.
Title: Make restitution a priority over prison.
To: The Washington Times. Published 8Jun95.
Note: I'm afraid some people have interpreted this letter as saying "kill all the criminals - no matter how petty." My intention is the exact opposite. The ultimate wish is for a world where no one is drawn to criminal activity; but even given a world with criminals, I want to see punishment eliminated.
You recently published two letters dealing with appropriate punishment for criminals (25May95.) In one, Daniel Beatty calls for prisoners to serve their full terms. Mr. Beatty's proposal is in no way unreasonable, but, besides the problem of determining exactly what is an "appropriate" sentence in the first place, I wonder how much real difference in the crime rate there would be if convicts were held a few years longer on the average. The point is, they will be back on the street sooner or later. The only way around that is to make the sentence for all crimes life (literally) in prison - and surely no one is proposing that.
In the other letter, Jeff Lisanick sensibly calls for alternatives to incarceration for nonviolent offenders. I would like to raise a question about the appropriateness of prison sentences for any crime. What comes out of our "crime academies" is likely to be even less desirable than what went in - and the money we spend for this dubious achievement is staggering.
I propose we start thinking in terms of restitution to the victim rather than prison terms. In cases of theft and destruction of property, determining a fitting restitution would not be difficult. For violent crimes, the notion of restitution may seem strange at first thought. For the most violent crimes there is no problem since a clear majority of society approves of the death penalty. But how much money is a nonfatal physical attack worth, for example? If that's not easy to answer, it's certainly no harder than trying to equate the deed with some number of months in jail. In cases where the crime is not against a person or persons specifically, such as cruelty to animals or poisoning a river, the fine would go to the organization which works to protect whatever was harmed. In cases of victimless "crime" there would be, appropriately enough, no fine to pay anyone.
If the criminal doesn't have the money and it's obvious he wouldn't be able to find the work to allow him to pay his debt, there is no end of menial, 12-hour-per-day public service jobs he could be given. Although this effectively means the taxpayers are paying off his debt, at least we would have something to show for it. For a start, imagine gleaming cities without a speck of trash or graffiti in sight.
What if he refuses to work? Then he would go to prison. But prison would have nothing in common with the holiday camps for convicts we have now. It would be a place so bleak that anybody would do anything - such as paying off his debt - to avoid it.
Think of unbreachable walls with no one on the inside except the prisoners themselves. The front gate is one-way; once you go in you don't come out. Water, stale bread and used clothing are air-dropped in. Occasionally. Maybe.
Does this sound inhumane? "Cruel and unusual"? To superficial thinkers only. First of all, such a system would encourage people to behave themselves. Secondly, keep in mind that even convicted criminals who want to avoid prison could do so.
A person who finds himself on the inside has absolutely no one but himself to blame. Finally, if your compassion so moves you, you could assume the unrepentant convict's debt to save him from prison. (Be careful, though - you may be held partly responsible for his next crime.)
Having said all this, even I would not want to see the above ideas implemented as part of our current system of justice; where arrogant and out-of-touch lawmakers and judges dictate what is "best" for us and lawyers play their idiotic games without any concern for justice being served. As always, my proposal is to replace our justice system with one based on common sense and conscience. There would be no need for written laws, just "don't do to others what you wouldn't want done to yourself." The majority vote of randomly selected juries, big enough to ensure an accurate representation of the views of society at large, would decide disputes without lawyers or judges, and determine the punishment.
Of course, it's not too likely that our lawmakers will repeal the millions of existing laws, replace the Constitution with the Golden Rule and take a hike based on one letter to the Washington Times, but it's crucial that we start giving serious thought to either fixing or overhauling our decaying system of justice.
Title: Re: a hung jury.
To: The Washington Times, 26Nov92. (Not published.)
[Regarding the hung jury trial of Daniel Enriquez Gomez] I suspect that if I had heard all of the evidence presented in the trial I would not have sided with the jurors who voted for acquittal. However, I applaud them strongly for not allowing themselves to be bludgeoned into voting opposite what they truly believed.
If there is a problem here, I suggest it is with our system of justice itself, which requires unanimous verdicts. Where else do we allow our hands to be tied until complete agreement is reached? And where else do we condone the mental equivalent of brute force to make people say what they don't believe?
In other decision-making efforts, 10 out of 12, or 83%, would be considered a clear, undeniable mandate. In this case, as with all of our trials, no claim can be made that the makeup of the jury was in any way representative of society at large. It was the end product of a power play - or game, if you will - between the prosecution and defense. I propose that in a more ideal system of justice, where juries do accurately reflect society by virtue of being randomly selected, something less than a unanimous verdict may be good enough.
Title: Re: No one has come up with a better system...
To: the Washington Times. Published 7May92.
The last sentence of your editorial "The violence in Los Angeles" felt like a kick in the teeth: "The system of jury trials may produce results some people don't like, but no one has come up with a better system for trying facts." Perhaps no better system has ever been implemented anywhere, but surely anyone who's ever given the matter any thought could suggest improvements.
Our system of justice is based on word play, not a sense of right and wrong. Laws are created by an entrenched ruling class with little regard for the concerns of the people and often without a clear notion of what the impact of a law will be or how it will be interpreted. That's left to bureaucrats and another entrenched class of people, namely judges, many of whom are appointed, not even elected.
Non-principals, namely lawyers, whose only job is to slant fact and emphasize irrelevancy, control the trial proceedings.
The juries are too small to be expected to reflect society's make-up in any statistical way. The juries are hand-picked, i.e. rigged, by the lawyers. The defendant - the most important person in the trial - often does not even testify! Can you imagine the difficulty of explaining that to an inquisitive alien trying to make sense of our system?
Your defeatist "that's the way it is" attitude serves no useful purpose. Certainly we should continually examine our system of justice and work to make it as fair as possible.
To: the Washington Post. February 10 1998. (Not published.)
Re: activist jurors, the subject of articles "In jury rooms, a form of civil protest grows" and "One juror's convictions", February 8 1998.
I don't know how anyone could read more than a fraction of the two pages of articles on "activist jurors" without seeing clearly that the so-called "problem" has nothing to do with the individual who courageously votes his concience in the jury room, but with the rules of the game itself.
In what other arena of life do we require unanimity before we can act? Where else do we let the desires of a single person take precedence over eleven others? Consider that when one presidential candidate wins with even 55% of the vote, we call that a "landslide", or a "mandate".
My proposal, as always, is for large juries selected completely at random so that they accurately represent society at large.
Simple majority vote wins. No more need for jury selection game playing. No more need for the mental equavalent of brute force in the jury room to make someone vote the opposite of what he believes. (No need for jury rooms, even.)
Throughout the article, reference is made to jurors rejecting, vetoing, ignoring and disregarding the law. This is not feasible, actually. Juries don't see the law. They are presented with a list of charges to vote on, and it takes no small leap of faith to accept that a given charge derives directly from some written law somewhere. This is surely an admission by our justice system that our laws are far too inscrutable for most, if any, of our citizens to make sense of. Not that the charges are necessarily any more understandable...
And on the subject of inscrutability, is it too late in the debate to dump the "jury nullification" head-scratcher? What we are talking about is "jury freedom" to introduce common sense and conscience into the justice system, although I suppose the powers-that-be would stump for "jury anarchy" and its negative connotations.