Rothbard A to Z

JUDICIARY

… while the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches … this means that the State has set itself up as a judge in its own cause, thus violating a basic juridical principle for aiming at just decisions.

Egalitarianism as a Revolt Against Nature, p. 73

… it would not be a very difficult task for Libertarian lawyers and jurists to arrive at a rational and objective code of libertarian legal principles and procedures based on the axiom of defense of person and property, and consequently of no coercion to be used against anyone who is not a proven and convicted invader of such person and property. This code would then be followed and applied to specific cases by privately-competitive and free-market courts and judges, all of whom would be pledged to abide by the code, and who would be employed on the market proportionately as the quality of their service satisfies the consumers of their product.

Egalitarianism as a Revolt Against Nature, p. 208

In every crime, in every invasion of rights, from the most negligible breach of contract up to murder, there are always two parties (or sets of parties) involved: the victim (the plaintiff) and the alleged criminal (the defendant). The purpose of every judicial proceeding is to find, as best we can, who the criminal is or is not in any given case. Generally, these judicial rules make for the most widely acceptable means of finding out who the criminals may be. But the libertarian has one overriding caveat on these procedures: no force may be used against noncriminals. For any physical force used against a noncriminal is an invasion of that innocent person’s rights, and is therefore itself criminal and impermissible.

Ethics of Liberty, p. 82

If no force may be used against a noncriminal, then the current system of compulsory jury duty must also be abolished. Just as conscription is a form of slavery, so too is compulsory jury duty. Precisely because being a juror is so important a service, the service must not be filled by resentful serfs.

Ethics of Liberty, p. 83

… a libertarian legal order will have to eliminate the entire concept of the subpoena power. Witnesses, of course, may be requested to appear. But this voluntarism must also apply to the defendants, since they have not yet been convicted of crime. In a libertarian society, the plaintiff would notify the defendant that the latter is being charged with a crime, and that a trial of the defendant will be underway. The defendant would be simply invited to appear. There would be no compulsion on him to appear. If he chose not to defend himself, then the trial would proceed in absentia, which of course would mean that the defendant’s chances would be by that much diminished. Compulsion could only be used against the defendant after his final conviction. In the same way, a defendant could not be kept in jail before his conviction, unless, as in the case of police coercion, the jailer is prepared to face a kidnapping conviction if the defendant turns out to be innocent.

Ethics of Liberty, pp. 83–84

In the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrongdoer. In a libertarian world, there would be no crimes against an ill-defined “society,” and therefore no such person as a “district attorney” who decides on a charge and then presses those charges against an alleged criminal.

Ethics of Liberty, p. 85

… the State’s own monopoly judiciary has inexorably broadened the construction of State power …

For a New Liberty, p. 80

… the government has hereby set itself up as a judge in its own case, and has thus violated a basic judicial principal of arriving at any kind of just decision.

For a New Liberty, p. 82

Compulsory labor permeates our legal and judicial structure. Thus, much venerated judicial procedure rests upon coerced testimony.… compulsory testimony must be abolished … compelling testimony from anyone for any reason is forced labor—and, furthermore, is akin to kidnapping, since the person is forced to appear at the hearing or trial and is then forced to perform the labor of giving testimony.… the problem is to eliminate all coerced testimony, including the universal subpoenaing of witnesses to a crime, and then forcing them to testify. In the case of witnesses, there is no question whatever of their being guilty of a crime, so the use of compulsion against them—a use that no one has questioned until now—has even less justification than compelling testimony from accused criminals.

In fact, the entire power to subpoena should be abolished, because the subpoena power compels attendance at a trial. Even the accused criminal or tortfeasor should not be forced to attend his own trial, since he has not yet been convicted. If he is indeed—according to the excellent and libertarian principle of Anglo-Saxon law—innocent until proved guilty, then the courts have no right to compel the defendant to attend his trial.… The most the court should be able to do, then, is to notify the defendant that he is going to be tried, and invite him or his lawyer to attend; otherwise, if they choose not to, the trial will proceed in absentia. Then, of course, the defendant will not enjoy the best presentation of his case.

For a New Liberty, pp. 106–07

… it is impossible to justify any imprisonment before conviction, let alone before trial. …

The granting of bail is a halfhearted attempt to ease the problem of incarceration before trial, but it is clear that the practice of bail discriminates against the poor.

For a New Liberty, p. 109

There is little difference in kind, though obviously a great difference in degree, between compulsory jury duty and conscription; both are enslavement, both compel the individual to perform tasks on the State’s behalf and at the State’s bidding. …

… precisely because the service is so vital, it is particularly important that it be performed by people who do it gladly, and voluntarily. Have we forgotten that free labor is happier and more efficient than slave labor? The abolition of jury-slavery should be a vital plank in any libertarian platform. The judges are not conscripted; neither are the opposing lawyers; and neither should the jurors.

For a New Liberty, p. 110

… the monopoly courts of government are subject to the same grievous problems, inefficiencies, and contempt for the consumer as any other government operation. We all know that judges, for example, are not selected according to their wisdom, probity, or efficiency in serving the consumer, but are political hacks chosen by the political process. Furthermore, the courts are monopolies; if, for example, the courts in some town or city should become corrupt, venal, oppressive, or inefficient, the citizen at present has no recourse.

For a New Liberty, p. 276

The legal code, simply, would insist on the libertarian principle of no aggression against person or property, define property rights in accordance with libertarian principle, set up rules of evidence (such as currently apply) in deciding who are the wrongdoers in any dispute, and set up a code of maximum punishment for any particular crime. Within the framework of such a code, the particular courts would compete on the most efficient procedures, and the market would then decide whether judges, juries, etc., are the most efficient methods of providing judicial services.

For a New Liberty, p. 282

… just as religion has been separated from the State, and the economy can be separated from the State, so can every other State function, including police, courts, and the law itself!

For a New Liberty, pp. 282–83

… in the totally free society, any suspicion of a judge or court will cause their customers to melt away and their “decisions” to be ignored. This is a far more efficient system of keeping judges honest than the mechanism of government.

For a New Liberty, p. 292

… the idea of the presumption of innocence to the accused is simply a basic principle of fairness …

Irrepressible Rothbard, p. 354

… criminal convictions can only take place if the charge is proven beyond a reasonable doubt, and hence the credibility of the victim must be vital to reaching a verdict.

Irrepressible Rothbard, p. 369

… absolute power must never be entrusted to a small oligarchy of men, especially Supreme Court judges, who are an unchecked oligarchy appointed for life. Before Federalist John Marshall began to amass all power in the Supreme Court, no one ever believed, even with the existence of such a court, that it has the last word on constitutionality.

Irrepressible Rothbard, p. 376

… the power to declare guilty and sentence someone for contempt of court totally violates the basic legal rule of separation between prosecutor and judge. The judge makes the charge of contempt against the defendant. The judge then “hears” his own case as he sees fit, and then the judge, without benefit of jury trial, declares the defendant guilty and pronounces sentence. There is no excuse for this kind of judicial proceedings.

Libertarian Forum v. 1, p. 73

The judge is a tinpot tyrant, and very little that he says and does has, in actual fact, been subject to the review even of other judges, let alone the public at large. Contempt convictions enable the judge, the allegedly aggrieved party, to “try” the case himself, without benefit of jury or defense counsel or the usual safeguards of the legal system, and then to declare guilt himself and to carry out the sentence.

Libertarian Forum v. 1, p. 93

… libertarians should welcome all the campaigns to question or impeach the Supreme Court …

Libertarian Forum v. 1, p. 119

In the libertarian society of the future … all prosecution would be exercised by the victim or his agents, and not by any sort of “district attorney” presuming to speak for “society” as a whole.

Libertarian Forum v. 1, p. 268

Compulsory jury duty differs only in degree, not in kind, from the slavery of conscription.

Libertarian Forum v. 1, p. 518

… any society, be it statist or anarchist, has to have some way of resolving disputes that will gain a majority consensus in society. There would be no need for courts or arbitrators if everyone were omniscient, and knew instantaneously which persons were guilty of any given crime or violation of contract. Since none of us are omniscient, there has to be some method of deciding who is the criminal or lawbreaker which will gain legitimacy, in short whose decision will be accepted by the great majority of the public.

Libertarian Forum v. 1, p. 536

… there is no need for a legally-established or institutionalized single, monopoly appeals court system, as States now provide. There is no reason why there cannot arise a multitude of efficient and honest appeals judges who will be selected by the disputant courts, just as there are numerous private arbitrators on the market today.

Libertarian Forum v. 1, p. 538

… in the anarchist society there will be no “district attorney” to press charges on behalf of “society.” Only the victims will press charges as the plaintiffs. If, then, these victims should happen to be absolute pacifists who are opposed even to defensive force, then they will simply not press charges in the courts or otherwise retaliate against those who have aggressed against them. In a free society that would be their right. If the victim should suffer from murder, then his heir would have the right to press the charges.

Libertarian Forum v. 1, p. 538

… judicial review is not simply a welcome check on government power. More important is the function of judicial review in validating, in legitimatizing, government power, and in inducing the public to accept it.

Strictly Confidential, p. 52

JUSTICE

… man can use reason to take the path of justice and virtue …

Economic Thought Before Adam Smith, p. 263

… a flourishing libertarian movement, a lifelong dedication to liberty, can only be grounded on a passion for justice. Here must be the mainspring of our drive, the armor that will sustain us in all the storms ahead, not the search for a quick buck, the playing of intellectual games or the cool calculation of general economic gains.

Egalitarianism as a Revolt Against Nature, p. 241

… injustices are deeds that are inflicted by one set of men on another; they are precisely the actions of men, and, hence, they and their elimination are subject to man’s instantaneous will.

Egalitarianism as a Revolt Against Nature, p. 241

In the field of justice, man’s will is all; men can move mountains, if only men so decide. A passion for instantaneous justice—in short, a radical passion—is therefore not utopian, as would be a desire for the instant elimination of poverty or the instant transformation of everyone into a concert pianist. For instant justice could be achieved if enough people so willed.

A true passion for justice, then, must be radical—in short, it must at least wish to attain its goals radically and instantaneously.

Egalitarianism as a Revolt Against Nature, p. 242

Aggressive violence is criminal and unjust; defensive violence is perfectly just and proper; the former invades the rights of person and property, the latter defends against such invasion.

Ethics of Liberty, p. 225

… the libertarian must be possessed of a passion for justice, an emotion derived from and channeled by his rational insight into what natural justice requires.

Ethics of Liberty, p. 258

Goodness, Truth, Beauty, and Justice will eventually triumph.

Irrepressible Rothbard, p. 402

What we libertarians object to, then, is not government per se but crime, what we object to is unjust or criminal property titles; what we are for is not “private” property per se but just, innocent, non-criminal private property. It is justice vs. injustice, innocence vs. criminality that must be our major libertarian focus.

Libertarian Forum v. 1, p. 28

Not only do I see nothing wrong with “hating” crime and injustice, I hold that genuine love of Justice requires such hatred.

Libertarian Forum v. 1, p. 268

… uniformity of treatment per se cannot be established as a canon of justice.

Man, Economy, and State with Power and Market, p. 1220

…violence is either invasive and therefore unjust, or defensive and therefore just.

Man, Economy, and State with Power and Market, p. 1328

Economic well-being, therefore, as well as the basic principles of morality and justice, lead to the same necessary political goal: the reestablishment of the security of private property from all forms of coercion, without which there can be no individual freedom and no lasting economic prosperity and progress.

Strictly Confidential, p. 240