Kill The Precedent

March 10th, 2014   Submitted by Davi Barker

KTPIf that headline seems shocking, read it again. It does not say what you think it says. The legal concept of the precedent, whereby judicial decisions in one case are binding upon future cases, is utterly flawed, and should be abolished. In fact, the entire way Voluntaryists think about Stateless justice needs to change if we ever want our ideas about restitution to reach more than forum trolls. But if that headline still offends you, just pretend it says “Bitcoin, Pizza, and the Future of Justice.”

It is baffling to me that Voluntaryists acknowledge that a one-size-fits all solution will always fail, while some propose that the zero-aggression principle is a one-size-fits all solution. It is as if they would be satisfied if the State’s only role was to enforce non-aggression. I humbly submit that this too would fail.

We often debate about a little girl who trespasses to pick flowers, or a mother who steals bread for her starving family, or intellectual property, or peaceful parenting, and on and on. Like it or not, the boundaries of the zero-aggression principle are blurry, and that means there will forever be a diversity of interpretations, and strongly held convictions. To enforce a singular interpretation would require a State.

The problem with these debates, and the reason they progress nowhere, is that those having them are still thinking like Statists. They are trying to codify the zero-aggression principle into a perfect statute which resolves all disputes. They are effectively saying, “I articulate non-aggression this way, and so should everyone else,” when all they really have the authority to say is, “If I were a judge overseeing that dispute, I would decide this way.” If we want to discover the actual fruits of these ideas we need to stop pretending to be Stateless legislators, and start thinking like Stateless judiciaries.

It’s no coincidence that scales are both a symbol of justice, and of commerce. Whether it’s a merchant and a customer negotiating a sale, or a judge deciding the restitution between disputants, the scales represent the balance of debt between two parties. What I’ve never seen Voluntaryists acknowledge is that a judge’s decision in a case is a price, and therefor should be determined by the price mechanism, and not by statute.

Using statutes to define restitution is akin to a central planner setting prices, and using precedents to bind future decisions is akin to price freezing. Price discovery, and by analogy justice discovery, requires the freedom to fluctuate. Therefor, understanding the utter failure of government judicial systems requires the same analysis as the utter failure of centrally planned economies. For Stateless justice to function judges must have the autonomy to nullify any statute, and to kill any precedent. Judges must be able to decide cases on an individual basis, just like merchants set their own prices, and customers decide their own purchasing habits. As uncomfortable as that may sound, the same market pressures that drive commerce toward lower prices, and higher quality will also push justice toward greater balance.

I think this idea causes discomfort because people are accustomed to some stability in the judicial process, and they think statutes and precedents provide that stability. Even if it’s arbitrary, and officious, at least it seems predictable on paper. It’s similar to the discomfort someone accustomed to absolute communism would feel if the government stopped providing free gruel, and allowed merchants to sell gruel at any price they wanted. Sure, government gruel was particularly disgusting, but at least it was dependable.

Government justice is entirely collectivized, and not subject to any price mechanism. So, if the cost of incarcerating a criminal exceeds the damages they caused that’s not seen as a miscalculation. Instead, it’s a jobs program for prisons, a money trough for lawyers, an empty campaign promise for legislators, and in the end a tax bill for the victims. On the other hand, Stateless justice has no price point yet. All the theorists who have described how Stateless justice might work are essentially predicting the price of the first bowl of gruel sold after communism.

A great example of a price mechanism emerging from a collectivized service is Bitcoin. Government money is a centrally planned endeavor, and it suffers from some predictable economic miscalculations. It reportedly costs 2.4 cents to make a penny, and 11.2 cents to make a nickel. Alternatively, crypto-currency had no price point at first. The first purchase made with Bitcoin was famously two pizzas that sold for 10,000 btc, worth just over $6 million today. The price of Bitcoin, and other cypto-currencies, is not set by statute, or bound by precedent. The price is a custom, which constantly adapts to new circumstances, and adjusts to the needs of every transaction. It is the aggregate of millions of constantly fluctuating price points. This is how price discovery operates in a free market, and ultimately how prices stabilize.

We don’t know what Stateless justice will look like, just as we don’t know what the price of Bitcoin will be in a year. Anyone predicting these things is merely expressing their own subjective value. Whether or not the market agrees with them remains to be seen. In order to discover what a functioning Stateless justice system looks like we need to stop arguing and start actually settling disputes. Because justice isn’t going to be defined by a dozen Voluntaryist intellectuals writing statutes. It’s going to be discovered in the aggregate of a thousand Voluntaryist judges settling cases between Voluntaryist disputants, and the groundswell of opinionated Voluntaryist commentators that follow. Before there can be an aggregate, Stateless justice needs it’s $6 million pizza. At first it’s going to be volatile, and it’s going to be unpredictable, but if we’re going to change the world we’ve got to be willing to do something unprecedented.

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24 Responses to “Kill The Precedent”

  1. Michael HendricksNo Gravatar says:

    The only gripe I have with this article is that I’d say the NAP isn’t the only deontological position that can support a justice system.

    • Davi BarkerNo Gravatar says:

      True enough. I suppose anything could be used to establish some kind of make-shift justice system. Heck the constitution has. Maybe the AnComs will have a committee of people determining people’s means, and needs to decide who gets what stuff in a dispute.

  2. Seth KingNo Gravatar says:

    This is an excellent article. Often times voluntaryists look down on vigilantism. I’m one of the ones that do not.

    • Davi BarkerNo Gravatar says:

      In my view “vigilantism” is a word like “terrorism.” They only have meaning while a State exists, to describe actions the State prohibits while also engaging in.

  3. Foo QuuxmanNo Gravatar says:

    “It reportedly costs 2.4 cents to make a penny, and 11.2 cents to make a nickel.”

    Well see, the government is extracting efficiencies from the magic Value Imputation Process! Only putting one cent of value in a coin has a cost of 2.4 times the value, but putting 5 cents in has a cost of 2.24 times the value!

  4. VanmindNo Gravatar says:

    This seems to be merely stating the obvious. Case Law is indeed a scam, much like bitcoin.

  5. Alex ZNo Gravatar says:

    I seem to recall a bit of ancient wisdom, it may even be in the bible somewhere to the effect:

    “It is best to resolve disputes prior to going before a judge,”* for once you’ve abdicated your abilities and efforts, you have abdicated a truly just resolution. Once the State is involved, all parties are likely to be dissatisfied with the outcome.

    *surely a poor paraphrase

    The Boot-Strap Expat

  6. ReverendDracoNo Gravatar says:

    Thank you for this article – I’d never thought of Justice as quite such a market force before. . . but damned if it doesn’t make sense.

    “If we want to discover the actual fruits of these ideas we need to stop pretending to be Stateless legislators, and start thinking like Stateless judiciaries.” That filled in one piece of the puzzle that I was missing. Again, thank you.

  7. Big MNo Gravatar says:

    This may seem somewhat off subject, but it certainly applies to “state” “justice.”

    People should consider the fact that statutes never mention, much less define, a “man” or a “woman.” Since a “law” can only mean what it says, and can only apply to what it says it applies to or includes, that means that as long as a man or woman insist on defining or identifying themselves as ONLY a man or woman, and refuse to allow anyone else to define them as anything different, especially as anything mentioned in a statute, then for all intents and purposes, statutes cannot apply to a man or woman.

    In case somebody wants to call me nuts, remember that all “governments” and “states” (including their courts) are corporations, legal fictions and artificial persons, and as such, can only interface with their own kind. This is undoubtedly why the terms “man” and “woman” are never used in these “laws,” which only include terms representing artificial entities, such as “person,” “individual,” “taxpayer,” “citizen,” etc.

    Lastly, they came up with the scheme of using what looks like the name of a man or woman, but in all upper-case letters and/or using initials. Since 99.9% of people don’t see the difference, they respond in a normal manner, which means that they are tacitly admitting to being the legal fiction being addressed. This can obviously cause huge problems, such as conning people into appearing in a court and unknowingly handing over jurisdiction to the court. To flesh this out, any legal document someone receives, whether it’s a notice to appear or anything else, ALWAYS uses what looks like their name, when in reality, the notice is actually addressed to a legal fiction. People need to stop responding to ANYTHING with a name like that on it, because it is NOT their name. If one looks at every card they have in their wallet or purse, or anything sent to them by a bank, supermarket, WHATEVER, they all use this form of NAME. This is NOT a coincidence, for these things are all sent by corporations.

    • absolute rightsNo Gravatar says:

      Not one of your points is true.
      It is legal nonsense.

      Government enforces its statutes as it pleases, regardless of what you call yourself and it can and does interact with flesh and blood living souls every second of every day.

      The government is a militant entity that occupies a society in order to control and extract society’s wealth.

      The government can take what it wants, when it wants, how it wants and if you defy it, it can put you in a cage, and if you resist, it can put you in the ground. And it is happy to do so 24/7.

      • Big MNo Gravatar says:

        “Not one of your points is true. It is legal nonsense.”

        Care to provide some proof?

        • If you were talking to me, I have actually witnessed the things I spoke of happening in courthouses… and their law libraries. I once even witnessed two cases on similar matters get totally opposite rulings due to politics! I was once told, in a matter of my own, by both a D.A. and a US Attorney, that a political decision had been made, and the law did not matter. I was also informed a court victory would not help me if I was dead!

        • absoluterightsNo Gravatar says:

          I refuted your points with the standard operating procedure of the legal system and daily practice of Government.

          Now its your turn:
          1) what court has ever acknowledged your version of the law?
          -Cite a case and a holding. Just one.

          2) What stopped San kennedy, and Tim Turner from using this defense before getting whisked away to the slammer?
          -After all, they were the supposed experts in this line of legal nonsense and it did them zero good.

    • absoluterightsNo Gravatar says:

      I refuted your points with the standard operating procedure of the legal system and daily practice of Government.

      Now its your turn:
      1) what court has ever acknowledged your version of the law?
      -Cite a case and a holding. Just one.

      2) What stopped San kennedy, and Tim Turner from using this defense before getting whisked away to the slammer?
      -After all, they were the supposed experts in this line of legal nonsense and it did them zero good.

  8. I used to cover courts and such as a reporter of government activities. I even spent a few hours in law libraries. The dirty little secret is that a judge, a zoning board, planning commission, etc., has two precedents to choose from. They are polar opposites, and the ruling authority can choose one or the other to suit their agenda in the case at hand, to squash or not to squash.
    It is like a corporation keeping two sets of books, reporting one openly, and keeping the other secret to all but the head honchos. The law books showed me that numerous cases that were won by people facing government or big business are kept totally secret and off the books, so that they may never be used as precedent, or give somebody a clue on how to prepare a successful case against the oligarchs, fascists, and robber barons! Also, FDR caused all case law from before his administration to be thrown out, and he essentially imposed a whole new framework for legal proceedings in the USA!

  9. Sam FoxNo Gravatar says:

    David M touches on something I need clarification on. I understand that at some point the ‘legal profession’ stopped teaching/using Constitutional law & went to precedent based case law.

    Any one know anything about that change? I could find nothing on the net. Perhaps I used the wrong search term, I don’t know.

    Thanks for any info. I subscribed to followup comments. Thabjs.


    • absolute rightsNo Gravatar says:

      Precedent based case law system has been the basis of american law since the founding of the federal constitution…and long before.

      It is true that law schools have emphasized the constitution less in recent years.

  10. SamFoxNo Gravatar says:

    Thank you absolute.

    I was under the impression that the law schools/ legal system once taught Const. Law, then at some point switched to case law. I take it this is not the case & I had the wrong impression. Shucks, I guess. 🙂 Not sure if it matters.

    Even if the man was teaching Const. Law, DC wouldn’t pay any more attention to the Constitution than they do now. Which isn’t much, sadly for US.


  11. Sam SpadeNo Gravatar says:

    This is a good presentation. I think the author is going where a man named Delmar England went in his one significant libertarian essay tried to go before he died. Sam

  12. DaveNo Gravatar says:

    Your article barely mentions precedent after inviting us to abolish it. You make many interesting points, none of which really have to do with precedent.
    Maybe we are thinking of different things when we think of precedent. When you call it “binding,” I think you overstate it. My impression is that there are many ways that a precedent can be overthrown, overruled, contradicted, ignored, contracted around, etc. Use of precedent makes the whole process more predictable. (After all, if two cases are really identical, why would you want to have two different decisions?) If one side can site precedent, it saves time. They just point out how similar this case is to that one, so the same decision makes sense if the process works at all. The other side has to try to question the relevance of a precedent, or find other precedents that apply in their favour. Both sides will likely site precedent, and the judge either must declare some more relevant than others, or perhaps make a judgement that defies all precedent but makes more sense.
    The system can’t learn and adapt if all cases start from scratch and ignore previous decisions. There is a definite need for a mechanism to overturn bad precedents, but it would be silly to get rid of the idea completely.
    I prefer to summarize your article as “the NAP can be a bit vague and hard to apply in some instances.” To which I say, yeah, for sure. What’s that got to do with precedent?

    • SamFoxNo Gravatar says:

      What if the president is wrong or based on bad law[s]? If they followed the law as written &/or the Constitution, would we need a president basis for adjudicating cases?

      If saving time means a bad decision, let’s take more time.


  13. STAndrewsNo Gravatar says:

    We are working on a solution with