Timely Justice

David — January 19, 2011

According to Andrew Steele of the Globe and Mail in his article Timely Justice (Dec. 7, 2009) the wheels of justice are grinding ever slower in Ontario:

“[In Ontario] the average court charge now takes 205 days to complete, rather than 115 day in 1992. Accused make an average of nine court appearances, compared to just four fifteen years ago. This means more time in remand for those charged and without the resources for bail. It means endless pain for the victims of crime forced to endure endless hearings and stayed motions. On the civil side, court delay basically means a two-tier justice system. The rich can afford to hire lawyers and endure the high costs that come with endless discoveries. Those of modest means are left without recourse because litigation means bankruptcy.”

Yes you heard that right: 205 days. This seems excessive but should anyone be surprised? The court system is a government run institution like any other and thus it is liable to grow stagnant due to lack of competition. It seems that the Ontario Court system has fallen victim to just that.

As worrisome as Ontario’s situation is the only thing worse would be for American style litigation to come to this country.

Comments

CodeSlinger says

David:

If your intent is to imply that a private court system is necessarily superior, you must address a number of very messy issues.

You must show why we can be certain that it will not be dominated by an oligopoly of court service providers.

You must show why we can be certain that it will not deteriorate into a system of verdicts for sale to the highest bidder.

In my opinion, the problem is not that the state has a monopoly on dispensing justice, and justice cannot be better served by introducing competing courts. Rather, the problem with the justice department is the same as the problem with the legislature, the health department, the department of education, and all the rest:

Everything the state does is a false front, serving the interests of huge multinational corporations, international bankers and traders, and private trusts.

The state has only legitimate function, which is to protect the equal rights of every individual equally.

But doesn’t do that. Instead, it oppresses the people and caters exclusively to its most powerful constituency: the men who own the world.

The challenge we must face is to construct a state performs its rightful duty to the people and cannot be corrupted by such huge concentrations of wealth, or an economic system in which such huge concentrations of wealth cannot form. Or, preferably, both.

— January 19, 2011

CodeSlinger says

Correction:

In the previous post, I meant to write:

The state has only ONE legitimate function, which is to protect the equal rights of every individual equally.

— January 19, 2011

Dave Killion says

As I’m sure you know, David, there have been and are numerous private court systems ranging from the law merchant of medieval Europe to clan elders of Somalia to the numerous private courts and arbitrators one can find in the phone book. Their continued popularity even in societies where government courts exist are testimony to the belief by their voluntary users in the trustworthiness of such service providers. Much like private education, private justice still provides quality and value despite having been largely displaced by government competition.

Bruce Benson provides everything you would want to know on the topic in his book “To Serve And Protect”, as does Edward P. Stringham in “Anarchy and the Law”.

— January 19, 2011

David C says

Codeslinger: There is nothing wrong with an oligopoly as long as the few courts that end up providing services got that way through voluntary competition and users preferring their system over another. Dispensing timely and just rulings is a courts product. in a free market the courts that did this best would get more customers. Courts unable to do this would go out of business and NO ONE would be able to coerce everyone else into using only one court system as our government currently does. To further my point that there is nothing wrong with oligopoly take a look at the market for operating systems right. One might say there is an oligopoly of those who provide them: Microsoft, Apple, Redhat… But is there anything wrong with this? What have those companies done but simply put hard work into their complex software? Every market does not need hundreds of providers – what markets need are property rights and a good justice system to resolve disputes. Whether a few or many providers result is not an issue. Regarding your second point about the court systems servings powerful interests I tend to agree at least when it comes to corporate disputes. Only the wealthy and powerful can afford the legal fees for such battles and the system is setup to benefit those who have an in with government officials – Canada isn’t as bad as most countries but we aren’t immune either. However, regarding civil disputes our system has clearly fallen victim to socialism with huge waiting times and multiple court appearances. It kind of reminds me of the Canadian Health Care system :)

Dave Killion: You make a good point. Thanks for the book recommendations.

— January 20, 2011

CodeSlinger says

David C:

You remarks about free markets have merit.

But. Oligopoly is not a free market.

Oligopoly invites collusion, and this collusion is always to the benefit of the oligopolists and to the detriment of the consumer. And therefore oligopoly is bad, no matter what mechanism brought it into being.

Therefore, one of the proper activities of the state, in carrying out its duty to protect the equal rights of every individual equally, is to use anti-trust laws aggressively to prevent the formation of oligopolies.

(Regarding the operating systems oligopoly, I will say briefly that it is a perfect example of how the resulting collusion harms the consumer. Most people have no choice other than Microsoft, which incorporates spyware in the kernel, or Apple, which incorporates spyware in the kernel. Only people with the technical savvy to compile their own open-source operating system from scratch are safe against built-in spyware. But to address this more deeply would take us too far off topic.)

Now, to return to the issue at hand, the difficulties with treating the courts as a free market are slightly different in the case of criminal prosecutions versus civil disputes. In the first case, the vast majority of criminals claim innocence and wrongful conviction. In the second case, every loser of a civil dispute claims to be the victim of a miscarriage of justice.

How do you propose to get an accused to choose a court, when their claim is they shouldn’t be in any court? In truth, there is no choice but force an accused into court, so how do you determine who does the forcing and how do you prevent a court which operates for profit from maximizing its profit by tailoring its verdicts to its customers’ preferences?

In the case of a civil dispute, how do you propose to get two adversaries to agree on a court? Each one will only agree to a court known to favour positions similar to his own. So again, you have to force the parties into a court which at least one of them refuses to recognize as legitimate. In every case, exactly half the “customers” of each court will say it is a good court, and exactly half will say it is bad. Since this prevents any court from building a good reputation, the only way for it to profit is by selling verdicts to the highest bidder.

While our single, public court system has its own flaws, I claim that the worst of them are due to the incestuous union of big government and big business. Both of them are far too big and far to cozy with each other.

The solution is to make them both much smaller and to outlaw any form of cooperation between them, including subsidies, regulatory favouritism, lobbying, and corporate campaign contributions. This would also include constitutional limitations on what government can do and constitutional requirements for transparency in everything it does.

The only way to guarantee justice for everyone is to make it impossible for anyone to profit by subverting it.

— January 20, 2011

CodeSlinger says

Dave K:

Car to liven up the debate by briefly summarizing the arguments presented by the authors you named?

— January 20, 2011

Dave Killion says

Thank you, CodeSlinger, but my personal preference is to leave the comment section to the commenters. Visits to the blog are slowly increasing, and I am confident you will have more company here soon. I am grateful for your input thus far, so thanks for that.

— January 20, 2011

Leave a Comment

Disclaimer: The articles and opinions expressed here are the views of the writer and do not necessarily reflect the views and opinions of the Libertarian Book Club.