Justice, Legislation, Law, And Crime

A lead editorial in the ToI draws attention to the fact that our courts system is not working - with millions of pending cases delaying as well as denying Justice. This, while the entire effort of our The State is directed towards what Hayek called "the mirage of social justice": the title of Volume II of his Law, Legislation & Liberty.

This system has been designed and built by socialist lawyers: Gandhi, Nehru, Jinnah, Patel - all lawyers. Lawyers benefit when litigation increases. They are also a "self-regulating profession" like doctors; only lawyers become judges, and only lawyers teach law. All the stuff they teach is "legal positivism" - that is, law that is "legally made" is law. This is the doctrine of legislative omnipotence. Socialism must depend on this doctrine of law, for "democratic legislation" is its weapon, that by which it seeks to control and direct economy and society, and empower the bureaucracy.

What they simply do not comprehend, since their entire "social science" is defective, is that human society exhibits an inner order because all the separate individuals are following rules they themselves do not know, and which have not been articulated - like Property. Society is not "lawless," nor in need of "law makers." When "normalcy" returns to Srinagar, Kashmir, what do the pictures show but streets teeming with shoppers?

Try and imagine another world - without legislation; a "private law society." Its pillars would be Property, Contract, and Torts. These pillars of Law "protect" the Individual and all that belongs to him. That is - such law is not coercive, as in the case of legislation.

We must think along these lines in India today because not only has the courts system failed, the State police are a failure too. The entire criminal justice system is a failure.

In a private law society, without legislation, there would be nothing called a "crime" - that is, in the sense of "crimes against The State." Smoking ganja is one such crime against The State, and there are so many more. All these non-crimes would be fully legit in a private law world. The only crimes, then, would be "crimes against The Individual" - and these would be primarily treated as Torts. So, if anyone injures anyone else or his properties, he compensates his victim. This builds a "caring society," because in such a society everyone takes great care not to injure anyone else through negligence. All are protected by all.

In such a world, there would be very little work for lawyers and judges - and most people would go through life without ever going to court.

Indeed, there is a "natural honesty" among the people, especially in India. And, in the England of the 1720, the subject of one issue of Cato's Letters is"The Natural Honesty of the People... "

A "natural order" exists.

Think about it.