On the Reformation of Law and Law-Enforcement

On Law

Libertarian social democracy, as I conceive it, is neo-republican. Republicanism defines liberty as the absence of domination. This differs from the definition used by most people today. Typically, people conceive liberty as the absence of interference. A man is free to the extent that no one else actively interferes in his actions. This is a conservative conception of liberty, known as negative liberty. Some, however, opt for a slightly more comprehensive form of liberty, seeking freedom to in addition to freedom from. This is known as positive liberty. These folks will say that a person is only free if (a) no one interferes with their actions and (b) they have the capacity to act in accord with their own will. This is typically a more liberal conception of liberty. Negative liberty is a classical liberal, conservative, or "libertarian" conception of liberty. Positive liberty is a modern liberal conception. In contrast to these, libertarian social democracy rests upon republican liberty , which is to say liberty conceived as non-domination. A man is free if no one else has the capacity to arbitrarily interfere with his choices.

With the negative conception of liberty, a man can be a "free slave." If he is a slave, he can still be free so long as his master does not choose to interfere. If his master happens to be benevolent and lets him do as he wishes, then he is still free in spite of being a slave. This is the absurdity of the classical liberal understanding of freedom. The republican, however, will say that the "free" slave is actually not free at all. He is not free because he has a master. It does not matter whether or not the master chooses to intervene. The very fact that the slave is subject to the arbitrary whim of another renders him unfree. As a libertarian, I hold that the goal of social order and government ought to be to maximize human freedom—or, what is the same thing, to minimize the domination of man over man. I call myself a libertarian and advocate republican liberty because any "liberty" that allows for the existence of "free slaves" is absurd and positive liberty is inadequate for guiding social policy. Every law of physics restricts positive liberty. A man is not free to the extent that he wants to be able to fly but cannot do so because he does not have wings. That sort of positive liberty, the freedom to do whatever one desires, is not something that any polity could reasonably promise. Thus, the pursuit of either positive liberty or negative liberty as the goal of a polity does not make any sense. It is the maximization of republican liberty that ought to be the guiding principle of politics.

The specific purpose of this chapter and the following one is to address how I think libertarian social democrats ought to think about law and law-enforcement. Any libertarian will find existing institutions and arrangements to be utterly abhorrent. And a libertarian social democrat (or neo-republican libertarian) will find existing arrangements even more repugnant than the typical libertarian would because she has a more comprehensive conception of liberty. In our society, we find that judges and police have a large degree of discretionary power. The system grants these figures the privilege of arbitrarily interfering with the actions and choices of others. Furthermore, our current system of law-enforcement encourages police to be aggressive, incentivizes corruption, and protects police from legal consequences.

I do not wish here to give a thorough critique of law and law-enforcement in America, so I will only highlight a few of the obvious problems. Firstly, our system tries to legislate morality by creating victimless crimes. For example, it is a crime if a man sits at home alone and smokes marijuana. Furthermore, it is a crime just for him to possess the marijuana. Now, it certainly does not harm anyone for him to do these things, but it is regarded as a crime in our society in spite of the fact that no victim can be found. Furthermore, we have a system of private for-profit prisons. These prisons have contracts with the government that make it mandatory for the government to ensure that the prisons stay full. If the government fails to keep the prisons full, they get hit with millions of dollars in fines. This creates an incentive for government to create new crimes through legislation and to search for excuses to imprison (enslave) more people. The main reason that marijuana has not been legalized throughout the United States is because the prison guards' unions and private prison companies spend millions of dollars lobbying against the legalization of marijuana on the grounds that it would reduce the number of people held in prison.

Police in America get away with extremely unethical and/or illegal activities on a regular basis. In my city, an officer was drinking and driving while on the job when he hit several motorcyclists, killing one and severely injuring two others. The officer's blood alcohol level was more than twice the legal limit, but the other officers conspired to make sure that the test results would not be admissible in court and even allowed the office to remove evidence from the crime scene. Just recently, police in Chicago used a bait truck to tempt people into committing a crime. They left an unattended truck full of expensive shoes in a poor black neighborhood and waited for someone to steal the shoes just so that they would have someone to arrest. Eric Garner was murdered by an NYPD officer for allegedly selling untaxed cigarettes. Furthermore, police across America regularly enforce anti-homeless laws (e.g. breaking up homeless encampments, confiscating blankets from homeless people, and arresting volunteers for feeding the homeless).

Many police departments in America actually have quotas for the number of tickets an officer must write in a day or the number of arrests he must make. This incentivizes police to harass people and look for crimes when there are no crimes to be found. Cops are often, if not always, required to do unethical things in order to keep their jobs. This creates a situation in which it is impossible for cops as cops to be entirely ethical. Apologists for the police will say that cops are "just following orders" or "just doing their jobs," but that is merely an excuse for unethical behavior. Let me remind you that every Nazi that murdered innocent people was just following orders and doing his job. Cops ought not to arrest people for drug use, but they often have to because it is in their job description. Thus, they are required to do something unethical in order to keep their job. The fact that it is basically impossible to be entirely unethical and be a cop in America indicates that there is something fundamentally wrong with modern policing.

I recognize that police also do many good things, like responding to emergencies, taking rapists and pedophiles off the street, etc. Nevertheless, the good that they do does not balance out the evil that they do. If a man is arrested for marijuana possession and ends up getting raped in prison, then gets PTSD and commits suicide, the arresting officer bears the guilt for that tragedy. The cop that arrested him is a murderer. No matter how much good that officer does on a daily basis, it never undoes the harm that he's done. He may save a million lives but it will never fix the lives he's ruined. My critique of policing in America isn't an attack on police officers but a recognition that the institution of policing, as we know it, is fundamentally unethical.

The Purpose of Civil Society & The Nature of Law

The purpose of civil society is to provide security. Civil society was formed in order to safeguard the liberty of individuals. The raison d'être of civil society is to guarantee individual liberty by protecting people from the arbitrary interference of others. In a "state of nature," there is a war of all against all. No one is secure in their liberty. It is quite easy for someone to be kidnapped and taken as a slave. Furthermore, it is quite easy for someone to steal another person's possessions. So, civil society was formed in order to protect individuals against violations of their fundamental right to liberty. And, again, I insist that we must define liberty as the absence of domination. The republican conception of liberty is inherently linked to the idea of self-ownership or individual sovereignty. To be free from domination is to be sovereign over one's self. To not be a slave, one must belong to one's self and not to anybody else. From here we can say that the labor that I perform with my body naturally belongs to me. Consequently, the product of my labor is mine. This framework justifies possessions or individual property. Republican liberty and self-ownership, if properly conceived, are coterminous. They are the same thing. I am free to the extent that no one else owns me. I am free to the extent that I own myself. Since the right to appropriate things through labor follows from self-ownership, we can also say that republican liberty requires a person to be secure in their own person and their rightful personal possessions. Since republican liberty entails security in one's person and possessions, it follows that the protection of persons and their possessions from aggression and theft is part of the fundamental purpose of civil society. Liberty and security are herein entangled.

From this raison d'être of civil society, it logically follows that there are a few important distinctions that need to be made. First, we must distinguish between vice and crime. A crime is some act committed that violates the rights of another person. It is a crime to violate the person of another human being via assault, rape, or murder. It is also a crime to violate their natural right over their own possessions. Thus, theft is a crime. A vice is a moral fault in which an individual goes against his own conscience or violates social mores or traditions in an unacceptable manner. Every single human being in the world commits vices, but most do not usually engage in criminal activity. It is a vice to say hurtful things, but a crime to physically assault someone. It is, perhaps, a vice to sleep around with a lot of different partners, but it is a crime to force yourself upon an unconsenting person and rape them. It is evident that vices do not infringe upon the liberty of others, whereas crimes do. If I physically assault someone or rob them, then I have sabotaged their individual liberty. I am arbitrarily interfering in their natural right to security in their own person and possessions. I am imposing my own will upon them in a dominating manner, making them subject to my whims. And we can glean from what has already been said that the very purpose of government entails the prevention and punishment of crime, as civil society exists for the purpose of securing liberty. The prevention and punishment of vice is beyond the scope of the purpose of legitimate government.

"Such a thing as a government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices, impartially; because nobody wants such an institution, or would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes is a reasonable matter; because everybody wants protection for himself against all crimes by others, and also acknowledges the justice of his own punishment, if he commits a crime."—Lysander Spooner

Secondly, and related to the first distinction, we must distinguish between natural law and positive law. Natural law (lex naturalis) is based on universal ethical principles and follows from the logic of natural rights. Natural law is universal. People naturally have a right to life, liberty, and possessions. Natural law is valid and applicable regardless of whether or not one consents to it. Positive law (lex posita), or law that is posited or declared, is rooted in human decrees. These rules are not universal, such that the positive laws of one society may differ from those of another. Theft and murder always violate the law, but driving 90 miles per hour on the left side of the road is legal in some societies. The rules that derive from natural law are universal and apply in all societies, whereas the rules derived from human decrees are malleable and differ according to the particular circumstances of time and place. A law that establishes a speed limit or mandates the payment of taxes is a positive law.

Both types of law are congruent with the raison d'être of civil society. It is quite obvious that violations of natural law, as I have defined it, are crimes that do direct harm to the person or rightful possessions of another. It is less obvious that positive law is consistent with the reason for establishing civil society. The purpose of civil society is to protect individuals from crime and to guarantee individual liberty to the greatest extent possible. These are entangled goals. The securing of individual liberty is inseparable from the prevention and punishment of crime, since all crime is an infringement upon individual liberty. However, the establishment of positive law is necessary in order to create a social order capable of securing and maximizing individual liberty for all. If people were allowed to drive as fast as they want, wherever they want, then no individual would be secure in his liberty since all would be in constant danger of being killed or maimed by an automobile. People are not secure in their liberty if corporations are allowed to pollute the air and water without any restrictions. If poisonous air and water makes everyone so sick that they lose the ability to do those things that they would do otherwise, then they are not secure in their freedom. Positive law is not only consistent with the purpose of civil society but a necessary component of achieving the essential purpose of society.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…"—The Declaration of Independence

"Everyone has the right to take part in the government of his country, directly or through freely chosen representatives…. The will of the people shall be the basis of the authority of government..."—The Universal Declaration of Human Rights, Article 21

For any positive law to be legitimate, it must meet three criteria: first, it must be consistent with the purpose of government, second, it must be consensual (having the consent of the governed), and, finally, it must be non-arbitrary (i.e. there must be equality under the law or isonomy). In other words, for a positive law to be valid and binding it must be aimed at maximizing liberty as non-domination and must have been established through a democratic process and remain subject to the possibility of being contested democratically. Furthermore, the law must apply equally to everyone. The principle of isonomy or legal equity says that all people ought to be treated equally under the law. Laws must apply equally to everyone. You cannot, therefore, have privilege where a different set of rules applies to a certain person or group than applies to others. Furthermore, the enforcement of the law must be equal as well. All legitimate positive law is consistent with the raison d'être of government and civil society but also must be based upon the consent of the governed and apply equally to all people.

We now need to define exactly what consent is. Consent, in my estimation, is not a formal contractual agreement per se. Consent is often more implicit and relates more to contestability than to contractual agreement. Here I am drawing on the thought of Philip Pettit and the republican tradition. To illustrate this point, consider consensual sex. When two people are fooling around and start to undress each other, they seldom stop making out to talk it out and explicitly come to an agreement to have sex. The consent is more implicit. The consent is still there even though they do not have a verbal contract. However, if one partner asks the other to stop, then consent is not there. Consent, in practice, is based more on contestability and lack of objection than on any sort of formal agreement. It is possible, then, for a civil society to have the consent of the governed without having a concrete social contract. I should clarify here that I am not advocating Hobbesian implicit consent, such as the notion that there is a legitimate social contract insofar as people obey and do not object as a result of fear. If a person has a gun to someone's head and that is why they do not object to sexual intercourse, it is still rape. In that situation, one cannot give consent. If people might object but cannot reasonably be expected to speak up about it, then there is no consent. Hobbes' social contract, in my view, is nonsensical and does not imply the consent of the governed any more than taping a person's mouth shut before raping them makes it consensual.

Many positive laws do meet the criteria for legitimacy mentioned above. For instance, traffic laws are aimed at securing life and liberty and have the consent of the governed. This does not mean that each individual formally agreed to obey the law, nor does it mean that individuals will not object to being punished for violating the law. People might like to be granted an individual exception or exemption, but they would not consent to a universal exception. The law has the consent even of those who disobey it and of those who object to being punished for violating it. No one would seriously advocate the abolition of traffic laws, nor would they consent to traffic laws being abolished. This is an important point. If you were to abolish traffic laws and allow people to drive as fast and as recklessly as they like, every person would object! No one wants it to be legal for a drunk driver to go down their street at 120 mph, weaving back and forth between lanes like a maniac, while their children play catch in the front yard. And no one would consent to any set of rules, or lack of rules, that would allow such a thing. While an individual might protest and seek preferential treatment when he breaks the law, he would not contest the validity of the law per se, nor would he consent to abolishing these laws and allowing everyone else to violate such rules with impunity. Thus, everyone consents to these rules in spite of their objections. Traffic laws are totally legitimate positive laws.

However, there are other sorts of positive laws that are illegitimate. In this category, take the ban on marijuana. It is clear that banning marijuana does not serve the purpose of maximizing liberty, nor does it reduce the amount of theft, assault, and murder. On the contrary, this law seems to violate the raison d'être of civil society. Even if it did meet that first criterion, it is quite clear that the ban on marijuana does not have the consent of the governed. The majority of the populace does object to the "criminalization" of marijuana. At the same time, this objection is not merely an individual petition for preferential treatment but a general principle. The general will is that marijuana ought to be legal. All those people who do object to marijuana laws would absolutely consent to legalizing marijuana for all adults. The objection is universal in scope. The federal ban on marijuana is an example of an illegitimate positive law.

I would also like to make a distinction between crimes proper and civil infractions. Here I define civil infraction in line with the common law tradition, rather than using the term in the specific legal sense which it has in the United States. A civil infraction is a non-criminal violation of positive law. A civil infraction occurs when a person breaks an ordinance or regulation without violating the rights of another—i.e. a civil infraction occurs when a positive law is violated but there is no victim harmed by the act. Violations of positive law are not crimes. A true crime must have a victim, a person that was wronged by the criminal act. Crimes are such things as theft, assault, rape, and murder. Civil infractions are such things as speeding, failure to appear in court, and tax evasion.

On Law-Enforcement

Having shed light on various distinctions that are often glossed over in our society, it is now time to address the issue of law-enforcement. In the previous section, we drew a distinction between natural law and positive law. We also shed light on the distinctions that separate vice, crime, and civil infractions from one another. A vice is an immoral act that does not necessarily violate legitimate law. As such, the prevention and punishment of vice is outside of the scope of the true purpose of government. It is illegitimate for government to attempt to legislate morality. A crime is an act that violates the natural rights of another person. It is a crime to assault another person or to arbitrarily take their possessions. A civil infraction is a violation of a legitimate law that, nevertheless, does not constitute a crime since there is no victim. We also realized that vice is beyond the legitimate scope of law and divided law into two separate and distinct parts. There is natural law, the violation of which is considered a crime, and positive law, the violation of which is considered a civil infraction.

Most societies do make these distinctions within the law itself, although they are seldom consistent in doing so. Additionally, most societies make these same distinctions with regard to adjudication. Almost every society has both civil courts and criminal courts, distinct courts for each respective sphere of law. It is my conviction that there should also be two separate and distinct organizations for purposes of law-enforcement. There ought to be one institution of law-enforcement that deals with natural law (i.e. the protection of persons and property against aggression and theft) and another that deals with positive law (i.e. enforcing rules, ordinances, and regulations). The fact that these two types of law-enforcement are entangled in our society undermines the legitimacy of law-enforcement and makes it impossible for people to trust the police. When someone calls to report a robbery or violent crime, the people that respond to that call are the same people who enforce anti-homeless laws, drug laws, and anti-LGBTQ laws. In the eyes of most people, such laws are unjust laws. Nevertheless, the same cops who respond to emergency situations also use violence and the threat of violence in order to enforce these unjust laws.

Homeless people, queers, drug users, and other people who have been harassed and threatened by the police cannot feel safe turning to the police when they need help because the police are also looking to bust them for their vices. We all agree on natural law. We all agree that it is good for the police to protect people from thieves, rapists, and serial killers. However, a great deal of positive law is up for debate. And a great many people, if not most people, regard most positive law in our society as illegitimate and evil. The reality is that the jackbooted thugs who arrest Food Not Bombs volunteers and beat down non-violent protesters are indistinguishable from the officers who arrest rapists and murders, and they are indistinguishable because they are the same exact people. If the people that come when you call in a robbery were not the same people that hide in the bushes and stalk people in order to write speeding tickets, then there wouldn't be such a general distrust of law-enforcement. The perception that cops are looking for someone to punish is what makes people dislike police, but it is also a largely accurate perception. The fascist assholes who shoot women and children with pepper spray for peacefully protesting are the same people that show up if you call 911 to report a shooting. That's the reality in America. When the duties of cops happen to include doing things that many people regard as highly unethical, how can anyone expect people to respect and trust the police?

My proposal is that law-enforcement be done by two entirely separate organizations. On the one hand, there shall be communal securance agencies (security/insurance agencies) that seek to protect people from violence and theft. These securance agencies ought to enforce natural law. Criminals shall be judged by criminal courts via trial by jury. On the other hand, there shall be communal police departments that seek to enforce the ordinances and regulations imposed by society. And civil infractions ought to be handled in civil court by democratically appointed judges, tribunals, or arbiters.

Securance & The Realm of Natural Law

One way of presenting natural law is to ground it in the idea of self-ownership or individual sovereignty. A person naturally owns their own body. One cannot even talk of their own body without using terms of possession. This is my body. That is your body. Consequently, a person can be seen as having a natural right to be sovereign over their own body. This is the reason that rape, assault, and murder are prohibited by natural law. These crimes violate the individual sovereignty of a person over their own body.

Since a person owns their own body, it follows that any labor that hey perform using their body as a tool is rightfully theirs as well. The labor that I perform is my labor. And it follows that the product of my labor must also be mine. The right of an individual to be sovereign over their own private possessions or "individual property" naturally follows from the principle of self-ownership or individual sovereignty.

The two preceding paragraphs pretty much sum up the whole of natural law. A person has the natural right to be sovereign over themselves and their own rightful possessions and no one else has the right to violate that right. The purpose of civil society is to safeguard such natural rights. Thus, society ought to establish institutions for the protection of persons and their possessions. Furthermore, these institutions ought to be oriented towards restorative justice rather than retributive justice. Ensuring that a criminal is punished for stealing a man's car and wrecking it does absolutely nothing towards justice. If the victim is left without a car and without any means to replace the stolen item, then the system of retributive justice does nothing at all towards achieving the purpose of civil society. It does not make a person secure in their person and possessions. Any system of justice oriented towards ensuring that one is secure in their persons and possessions must seek to guarantee that stolen property is restored to its rightful owner and that the victim is recompensed for any damages. The simplest way to provide such security is through what I call securance , a security and insurance company combined into one. This idea of combining the insurance and security functions in one organization comes from Gustave de Molinari and Benjamin Tucker.

The government ought to create securance agencies to function as law-enforcement with regard to natural law. The securance agency would be funded through taxation. Each individual would insure his person and property through his local securance agency and his tax payments would be the insurance cost. It is very important for the security function to be linked to insurance. There is no justice at all if there is no restorative justice! If a person is robbed, imprisoning the robber does not bring justice—throwing a thief in jail does not replace the property that was stolen. When it comes to the protection of persons and property, a system of law-enforcement ought to focus primarily on restorative justice and only secondarily on retributive justice. In a system of law-enforcement based on combining security and insurance (henceforth, securance), people would insure their person and property against theft and violence. The agency would first take preventative measures to try to prevent crimes. Perhaps, with permission from homeowners, they would install security systems and cameras in their customers' homes. Their customers, of course, would be the local taxpayers. If an individual allowed the securance agency to install cameras and a security system in his home, the agency might give him a discounted rate or tax credit. If one of their customers is robbed, the agency would pay out on an insurance claim for the damages. The insurance company would pay the customer for the stolen property so that the customer could go replace it. The agency would then open an investigation into the crime. They would attempt to determine who robbed the customer and then they would try to track that person down. The agency would act like a bounty hunter, searching for the criminal. Once they tracked down the criminal, they would arrest them and have them tried before a jury. If the jury finds them guilty, then the criminal will be fined for damages and will have to pay the securance agency in order to reimburse them for the insurance claim that they had to pay out. The criminal might also be liable for legal fees associated with the trial.

I follow Lysander Spooner in holding that criminal cases should be adjudicated via trial by jury. There ought to be a written record of common laws as legal precedent based in natural law tradition. However, these laws ought to be loose guidelines for juries rather than hard-and-fast rules. Juries ought to make judgements based on the particular circumstances of the case. A jury should be allowed to be more lenient or strict in their application of the law depending on the particular circumstances surrounding the crime. This libertarian system of trial by jury would bear little resemblance to the system currently in place.

"For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
"Unless such be the right and duty of jurors, it is plain that, instead of juries being a 'palladium of liberty'—a barrier against the tyranny and oppression of the government—they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
"But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them."—Lysander Spooner

The securance agencies within such a libertarian republican system ought to be subject to the positive laws of the community, so that the people can regulate them. The insurance costs ought to be set by law. And the securance company ought to be fined and penalized for violations of the rules of the community. If a securance agency fails to pay out on a legitimate claim, the customer could file a lawsuit against the agency in civil court. And the community would reserve the right to regulate the securance agencies as they see fit because securance would be a public service funded through taxes. The rules and regulations that govern the local securance agencies ought to be determined through democratic processes. The agency ought to be structured as a profit-sharing enterprise, so that the wages of all securance agents are directly affected by the performance of the agency. If the agency breaks the law and is fined or gets sued, then that will equate to a slight reduction in the wages of all securance agents. If the agency fails to capture a thief and, therefore, has to pay out on an insurance claim without any reimbursement, then it will affect the wages of the securance agents. This will serve as a way to create something analogous to competition based on profit motive but without the negative drawbacks. It will help ensure that the securance agency provides the best possible service at the lowest possible price.

Communal Police & The Realm of Positive Law

Societies are always very complex. In addition to natural law, there must also be positive law. The community must posit or declare rules about a multitude of things that can't just be deduced from natural law and common sense. For instance, a community might find that there are too many bicyclists riding on the sidewalks and it is becoming unsafe for pedestrians. The community may choose to ban bicycles on sidewalks and decide that bicycles should only be allowed on the road or in bike lanes. People driving recklessly through residential areas might cause safety concerns. Perhaps there is a road where people often lose control of their cars and wreck from driving too quickly. The community might decide to set a speed limit for that road. Additionally, it is necessary to set rules about which side of the road to drive on, who has the right of way at an intersection, and where a person may or may not park their car. These rules are perfectly legit, but they are of a different kind than those derived from natural law. Obviously these laws cannot be enforced on the principle of restorative justice. If someone is speeding but does not cause an accident, who is the victim and what was the cost incurred by the victim? The community will have to establish a police force in order to enforce its positive laws.

As I mentioned above, I hold that all legitimate positive law must be established through a democratic process. I have advocated what I call comprehensive counterbalanced democracy. This is essentially the notion that checks and balances within a democratic system ought to be democratic. In the American system, democratic power is checked by non-democratic forces. The Presidency, a monarchical institution, has the power to veto laws that have been approved through a democratic process. There are many different forms of democracy and I hold that a democratic process ought to be checked by other types of democracy, not by anti-democratic forces. Perhaps the people should be allowed a people's veto. I am interested in a number of different forms of democracy: delegative democracy, liquid democracy, assembly democracy, direct democracy, digital democracy, electronic direct democracy, representative democracy, deliberative democracy, consensus democracy, etc. I believe a thoroughly democratic society would integrate aspects of various types of democracy into its systems. This idea of comprehensive counterbalanced democracy is a topic for another book, so I digress. One of my primary convictions, however, is that positive law must be democratic in nature and have the consent of the governed.

Perhaps the communal police forces that enforce these rules could be rotational, where citizens are called upon at random to serve as police officers for a certain amount of time as part of their civic duty. I have no firm conviction on whether or not such a duty should be mandatory. I would prefer that it be a voluntary service, but I do not reject the idea of mandatory public service in principle. And it may actually be the case that making such service mandatory actually minimizes domination in society overall. Of course, mandatory public service would have to meet certain criteria in order to be legitimate. All those criteria for determining the legitimacy of positive laws would still apply. It is at least theoretically possible for a rule requiring mandatory public service to meet those criteria, but it is probably unlikely for such a law to meet those requirements in our society.

The rotational model of choosing people by sortition to serve as police officers is not the only acceptable approach. Alternatively, the community could set strict rules for who can become a police officer, setting requirements that one must meet in order to be eligible, and have the town council be in charge of approving police applications. The community could also set up a process whereby they can easily remove an officer from the service for any reason. It seems reasonable for the community to set up a separate and independent community organization for the investigation and review of complaints against officers; and this organization could have the ability to revoke an individual's license to practice law-enforcement. The idea of e-democracy or electronic direct democracy could also be applied here. Perhaps an online poll could be established, which would allow citizens to rank their experiences with officers. If a substantial number of people give an officer a bad rating, then that officer could be automatically removed from the service.

The civil courts that deal with justice in regards to positive law might have democratically elected judges or arbiters. Perhaps they might not be democratically elected but be required to meet certain criteria for eligibility and be approved by the town council. There should definitely be some sort of democratic process for the removal of judges/arbiters either way. Perhaps there could be an online poll for ranking judges. This would allow the people to directly vote on whether they consider a particular judge to be fair or unfair. If the judge has a bad reputation and gets an exceedingly unfavorable rating, then perhaps he should be automatically removed and replaced.

I do not want to set any hard-and-fast rules here because the most important thing is for these rules, institutions, and practices to be determined democratically and have the consent of the governed. This means that the particular form that the institutions take will depend on the will and judgement of the community.

On Prisons

My politics is rooted in ethics. As I have said before, ethics is rooted in the universal human conviction that human happiness and wellbeing is worth pursuing. Our goal is to maximize wellbeing and minimize suffering. Political philosophy is merely an extension of ethics. Our political philosophy merely applies ethics to the realm of politics. The purpose of law, law-enforcement, and courts is to provide security and social order in order to promote the general wellbeing of the populace and guarantee that people are reasonably free to pursue happiness in their own way. Prisons are entirely incompatible with the raison d'etre of government. The purpose of government is to maximize freedom as non-domination. This freedom as non-domination is valuable only because it allows people the greatest scope for pursuing happiness. It promotes wellbeing. In order to justify the institution of incarceration, you must prove that prisons somehow increase happiness, wellbeing, and liberty. It is blatantly obvious that prisons do no such thing.

The system I advocate focuses on restorative justice rather than retributive justice. The goal is not to punish the wrongdoing—to harm the people who have done wrong—but rather to make things right. The punishment of the criminal is justified only to the extent that it somehow compensates the victim or makes a step towards making things right again. If a person is likely to continue committing crimes in the future (because they are a kleptomaniac or a psychopathic serial killer), then it may be necessary to restrain them. However, such cases where restraint is necessary pertain to individuals who help related to mental health. It may be necessary to institutionalize some such people, but incarceration or imprisonment is still not justified. Prisons in no way help to maximize freedom as non-domination. They do not help to protect persons and property. They do not help to restore stolen property to its rightful owner. They do not make things right again. Prisons don't further the goal of restorative justice. Thus, prisons are manifestly unjust and incompatible with our theory of ethics and politics.

It would, perhaps, be best to have no prisons. However, a democratic society may end up with any variety of arrangements. If prisons are to exist, then it would be preferable for them to be run more like the prison system in Norway. In the 1960s, Norway had the world's highest recidivism rate, with 91% of prisoners returning to crime after release and ending up back in prison again. In the 1970s, they transitioned to a system of restorative justice. Norway now focuses on restorative justice, seeking to rehabilitate prisoners rather than punish them. They also boast the lowest recidivism rate in the world and one of the lowest crime rates. Each prisoner has their own room and their own shower. Rapes, stabbings, and assaults don't happen in their prisons because the prisoners are treated like human beings. American prisons subject the prisoners to psychological trauma and encourage violence. They also force people to shower together and fail to protect prisoners from assault and rape. Going to prison in America can be a traumatic experience that does permanent damage to an individual and makes it impossible to successfully reintegrate back into society after incarceration. Prisons in Norway, on the other hand, are designed to make it easy to transition back into normal life after incarceration. They rehabilitate people and help them get their lives back on track so that they can be productive members of society.

I have only briefly touched on prisons here because I will be dealing with this topic in more detail later. Nevertheless, I think these brief remarks are sufficient to give one an inkling of what a libertarian social democratic alternative might look like.