QUESTION: I am studying to become a lawyer. I find your legal writings fascinating. You provide a far deeper understanding of the rule of law than I am taught in school. I suppose that is becoming obvious in economics as well. Can you recommend any legal writing that may have influenced you greatly?
ANSWER: That is a hard subject to reduce to a single work. It is the evolution of law that is also important to understand for only then do you see the corruption that we currently live under. The Biblical story of King Solomon deciding the mother of a child illustrates the legal structure. You appeared before the king who was the judge and part of his duty was to settle disputes among the people. The state was not the prosecutor, it was the arbitrator. Today, governments profit from prosecutions and therein lies the problem. They are the judge and prosecutor so there is a conflict of interest that cannot be overcome.
In Plato’s Republic, you will find the debate between Socrates and Thrasymachus. While they will fiercely deny that the rule of law is only the interest of the stronger, that is just a fictional lie. The conviction rate in the United States federal court system has risen from about 75% during the 1970s to 85% by the 1990s, and it is now at 93% surpassing the most notorious court system of Adolf Hitler which had a conviction rate of 90%. Thrasymachus is absolutely correct. There is no rule of law. It is simply whatever the government desires.
Civil Asset forfeiture today is a classic example of how the law has been corrupted by self-interest. Civil Asset is a distortion and abuse of the foundation of the law from which it is justified by even the Supreme Court against the foundation of liberty. Criminal forfeiture is justified when the property is some gain from an act that someone is found guilty of a crime. However, civil forfeiture is an abuse of every legal principle for it rests not on the person being guilty, but the property. Law enforcement officers they declare the cash in your pocket might be from a drug crime without having to prove you did anything so they just seize it. This is a complete distortion of the old legal foundation upon which it was based known as “deodand” from the Latin Deo dandum, “that which must be given to God.” If you owned a horse and wagon and the horse suddenly ran off and killed a person, then the horse and wagon were forfeit to pay for the funeral of the person. What the government has done is effectively declared itself to be God. Any asset that might have been involved in a crime is to be forfeited to not God but the State.
Governments have gone way too far with the law. I would say the one book that impressed me the most was something I read on my own – not in class. I fully agree with John Stuart Mill (1806-1873) whose work, On Liberty, is one of my classic favorites. This is what is wrong with socialism. He made it clear that the “only purpose for which power can be rightfully exercised over any member of civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”
The prisons are filled with people buying, selling, or using marijuana. There is absolutely no evidence of it creating some great harm. It is certainly of a scale of personal harm below smoking and drinking. Even people who use cocaine can just stop. Heroin is an opioid drug, which is a completely different class. They allowed pill-mills for things like OxyContin which is the brand name for oxycodone hydrochloride, an opioid, and then outlawed the pill-mills. The people were addicted to this stuff and then turned to Heroin and the death-toll mounts from overdoses. I have a friend who was injured in a car accidence and his back was seriously hurt. They put a pump in him that had to be refilled once a month. Now, because of the abuse with pill-mills, they simply come down on doctors and nobody wants to fill his pump with the same medicine he has had for 20 years all because of these policies.
Prohibition was another example of countless lives were lost all because of a law to abolish drinking. That funded the Mafia and created organized crime. It really does not matter what the issue is for once you make something illegal, you create an underground economy that is tax-free. NO LAW will ever change human behavior. The women’s movement to outlaw drinking blamed the booze for men who were abusive, to begin with. You can pass a law and declare death penalty to kill another. It will never work because that will never cross the mind in the heat of the moment or there will always be people who think they can get away with it.
Any Government can NEVER be trusted with the prosecution of crimes. Boston Strangler of 1965, is the classic case in point. The police could not catch the guy and Albert DeSalvo was a known mental case who would often confess to crimes he never committed. The police even knew that but were frustrated to be looking like fools in the press unable to catch the culprit. The police charged DeSalvo to satisfy the press who couldn’t describe a single crime scene and there was never any physical evidence to link him to any crime.
The government should NEVER be allowed to prosecute crimes. There MUST be a fully independent body that makes the charging decisions so it is never personal ego of a prosecutor involved. Laws should be prohibited that pretend to protect people from themselves. The only laws should be restricted to harm against another. On top of that, the Supreme Cout should rule on the constitutionality of any law BEFORE it is enforced.