This is about who gets what, when, and how with the help of the state. Many of those inside the legal system and those who regularly are involved with it firmly believe that there are serious problems with the civil justice system and that fundamental changes are needed and they are working to institute their favored changes.
Needless to say, many reforms proposed and enacted favor some interests at the expense of others. It is a sophisticated work of persuasion rather than a detached scholarly analysis accessible to the layperson see p. It was written by Philip K. Howard — a lawyer and well-known policy activist in the debate surrounding civil justice. Like Professor Maxeiner, Mr. Howard has strong views on the subject and is highly critical of lawyers and the entire American civil justice system.
In practice, he argues, it lacks substantive accuracy, is deficient in procedural fairness, falls short in terms of equal access, and is highly inefficient. Each of these four elements is essential if there is to be a system consistent with the rule of law p. Building on this critique, Professor Maxeiner sets out to convince the reader to accept his assertions about the way in which the German system actually works and hence its superiority. It is a source of potential solutions because it operates, apparently flawlessly, as a system in which substantive accuracy and procedural fairness are the norm, in which access is broadly and inexpensively available, and in which efficiency prevails.
The South Korean system ultimately plays a secondary role in his argument. To make his argument, Professor Maxeiner uses a traditional law school vehicle, the hypothetical case. He does so, however, with a comparative twist.
To illustrate how the competing legal systems operate — the failings of the one and superiority of the others — he carefully takes the hypothetical from the very beginning of the process to the very end within each civil justice system. He moves the case from the initial meeting with an attorney about the issue in dispute including the discussion of cost all the way through judgment and possible appeal. At each step along the way, Professor Maxeiner explains the process, the rules involved, and how things would be handled in each system.
There are chapters on the respective legal professions, jurisdictional rules, pleading rules, formal processes, and final judgments. Among other points, he argues for a greater formalism and the use of legal syllogisms, which make civil justice possible. Consistently applied syllogisms promote equal protection under law.
They provide guidance to subjects of the rules. Syllogisms contribute to constraining decision makers, parties, and third parties.
The first point, which is perhaps less than compelling, is that the criminal, in a case between intimates, at least knows all about his prior relationship with the victim which is the real basis of the dispute. Use these to uncover clues about land ownership, historical structures, property boundaries, community growth, topography, and more. Vendettas and Feuds. The common use of fixed bail schedules 80 contributes to the problem: in addition to placing unfair burdens on indigent defendants charged with pricey crimes, it leaves rich defendants charged with the same crime in a relatively easy financial condition. Ultimately, while future proposed uses of monitoring technology should be carefully scrutinized, this necessarily somewhat vague threat should not prevent its use to help the very real people currently in jail. And as Frederick Schauer observed, slippery slope arguments are empirical arguments.
They make the rule of law possible pp. He also argues against juries because juries are unlikely to decide in the appropriate syllogistic fashion p. More specifically, the tables are focused on the issue of cost legal fees, expenses, court costs, etc. In a sense, the tables and their hypothetical data on costs serve as summary indicators of the problematic nature of the U.
Where police infiltrate radical groups, sometimes their agents get carried away, not only inciting but committing crimes. They are ordinary people who victimize other ordinary people. Very few are psychopaths, and even fewer are revolutionaries. They rarely get to rob from the rich. The rich are hardened targets. They keep or fence the swag. About the only thing that may distinguish criminals from other people is their, on average, somewhat lesser self-control, their greater impulsivity.
The first point, which is perhaps less than compelling, is that the criminal, in a case between intimates, at least knows all about his prior relationship with the victim which is the real basis of the dispute. The second point is that, in a legal system where most felonies and almost no misdemeanors come to trial, the victim or complainant usually gets little or no due process from the law either. They can do so only because the police and the courts use discretion. Those decisions are unilateral on their part, and having made them, they are answerable to nobody.
The complainant or victim has no meaningful opportunity, after complaining, to be involved in these decisions. The minimum definition of procedural due process, according to American constitutional law, is notice of a contemplated action and the opportunity to be heard. At a criminal trial, due process shines forth in all its glory — sometimes. But criminal trials are rare. He or she is only a witness, not a participant.
The third, and maybe the most important point, is that the criminal justice system is biased, not in a personal way, but in an institutional way. The system is systematically discriminatory. When the One-Shotters encounter it, they are usually on the receiving end, as defendants — these include accused criminals, tenants, and debtors. The system is biased in favor of the higher status person, whether criminal or victim, as against the lower status person, whether criminal or victim.
In the leading American case announcing the Rule of Necessity, Chancellor James Kent of New York had to decide a case — because nobody else was authorized to — to which his brother-in-law was a party. If my arguments have any merit, there are many people who face a similar choice. It is, for some, a felt Necessity. In a law-ridden state society such as ours, neither law nor crime is always the best way to deal with disputes.
Deriving as they both do from the state, law and crime compete to be the lesser evil. It all depends on the nature of the dispute, the social status of the disputants, what the law actually is, the availability or unavailability of third parties such as mediators or arbitrators or judges, and the facts of the case. Nobody could quantify these factors. But nobody who is well-informed can minimize the importance of any of them, with the possible exception of the enforcement of the criminal law. It has other supports. Anarchists also argue that in a cooperative, egalitarian society, there would be much less crime and virtually no property crime.
Anarchist methods work best where the law is at its worst, where the conflict or grievance involves a dispute, not impersonal unilateral aggression, and arises out of a prior relationship. The evidence of anthropology supports those arguments. It supports my argument. The popular fear of anarchism above all consists of the fear that, without military and police protection, people would be helpless against violent predation. He believed their danger to be, as I do, greatly exaggerated.
We need to confront the popular fear of anarchism head-on, and use every honest argument to dispel it. Most of the traditional anarchist answers still have some validity — although they need to be critically revised and modernized.
But these answers have obviously failed to convince more than a few people — as, indeed, all our arguments have failed to convince more than a few people. The supposed protections of the law are overrated, and anarchists have overlooked some of the evidence of this. People are already operating, usually apart from the law, and often against the law, in various ways to resolve their conflicts.
This is what we should try to convince people of. Indiscriminate tolerance did in the Flower Children. But, this issue is more silly than serious. One of the greatest ironies of state society is that the state is much worse at protecting us than it is at preventing us from protecting ourselves. And the state is best of all at protecting the state. Under anarchy, there will be only one enemy, and you, and your friends, and the friends of anarchy will deal with the common enemy, feeling a sense of solidarity, just like Durkheim said!
What Bacon called wild justice is better than no justice at all. I like my justice to be a little wild. But neither is vengeance just the result of a cold cost-benefit analysis. It has an emotional dimension, and why not? Vengeance can be empowering. Roger N. George Simpson New York: Macmillan, , George E.
Catlin, tr. Sarah A. Anthony J. Blasi, Anton K. Donald Black 2 vols. Half of all crimes are not even reported to the police. James F. Michael R. No government agency regularly compiles data on corporate or white-collar crimes, which are almost never reported to law enforcement agencies.
No one compiles statistics on misdemeanors even if they are reported. Regardless of the official methods of dealing with criminals we shall retain this method of control by group pressure. My argument does not depend upon the assumption that those who inflict unilateral violence on others, thinking that they are justified, are justified by moral standards prevailing in other sectors of society, or even in their own. Looking back on American history, there was vigilante justice, which was enforced by self-appointed groups usually, of the better sort of people where law enforcement was considered to be corrupt or ineffectual.
Then there was lynch law in the South, which, so far as we know, was, in that sense, almost never fair — but then it was always carried out with the connivance of local law enforcement. I would be the last person to say that social control is always a good thing. I am only saying that it happens, and not only from state action. We no longer have vigilantes or lynch mobs.
Self-help criminal social control is now almost always individual. Black, Behavior of Law, 9. This apparent circularity need not distract us from the main point that extralegal conduct, including crime, has some of the social effects claimed for law. Criminologists ask: Why do people commit crimes? Surely there are, or have been, societies with less social control than, say, North Korea. If A believes as he does that he has a right to possession of the bicycle, he lacks the mental element for larceny, the intent to steal, which would be necessary to both the robbery and larceny charges.
This is also why B committed no crime in merely failing to return the bicycle, if he intended to return it at the time when he borrowed it. Todd, Jr.
New York: Columbia University Press, , The traditional anarchist argument is that crimes of greed — property crimes — will virtually disappear under anarchy, in conditions of abundance and equality. I think this is a good argument, although the issue is studiously avoided by criminologists and sociologists of law, who are, almost to a man and the women are no better , policy pimps. But the anarchists are not so convincing when they discuss hate crimes, sex crimes, and, in general, impulsive or other emotionally motivated crimes.
It is all very well to say that, after a generation or two grows up in an enlightened anarchist society, crimes of passion or resentment will also disappear.
This is belied by the prevalence of such occurrences in stateless primitive societies. See, e. These anarchist societies merit our consideration, not because they have no disputes, but because many of them resolve disputes better than modern state societies do. It serves as an alternative to violence for those unable or unwilling to fight. Young men usually dealt with their disputes by fighting. Most women went to court. D conference on April 10, , in Berkeley, California. The real history of this feud is nothing like what people imagine.
It commenced with litigation over possession of a pig. An interfamily extramarital romance was also involved. The families did as much litigating and prosecuting as shooting; one case went as far as the U. Supreme Court. Hobsbawm, was carefully modest about its scope and frequency, and aware of its ambiguity. Norton and Company, , ch. For histories of the insurgency, see Peter Arshinov, History of the Makhnovist Movement, —, tr.
In — a bad year for Commies! By then, his concept of social banditry had come under devastating criticism of which the most formidable, as he acknowledged, was Anton Blok, The Mafia of a Sicilian Village, — A Study of Violent Peasant Entrepreneurs New York: Harper Torchbooks, , 97— I read the book in manuscript, when I was doing independent study under Blok at the University of Michigan.
Cressey, Criminology 9 th ed. Some of these facts may be elicited, following conviction, in a pre-sentencing report. Even aside from the low quality of these reports, they are only prepared in the small fraction of cases which have resulted in convictions for crime. And they are only considered with respect to punishment, not guilt. Liberals like it because liberals like victims.
For my critique, see Robert C. Their approaches are very different, but their conclusions are similar. Both, for instance, emphasize the advantage organizations have over individuals. Galanter, unlike Black, takes institutional legal processes seriously, and in that respect I think he has a stronger argument.
But then Galanter and I are lawyers and Black is not. Will, U. The Rule goes back to a case in medieval England where the judge himself was the plaintiff. VI, f. White, 6 Johns. The ultra-conservative Kent was nationally renowned not only for his equity jurisprudence but for his influential treatises on constitutional law and other subjects.
In , at age 82, Kent voted in a New York City election. He found the experience so repugnant that he vowed never to vote again. I feel degraded to go to the Poll and put in a Ballot amidst Vagabonds [mostly Irish] any one of whom destroys my vote.
Kent was of course correct about democracy. I have not discussed here the third factor — the forms of dispute processing as such conciliation, negotiation, mediation, arbitration, adjudication, etc. Bail reform, pretrial diversion, sentencing reform, and speedy trial rules are among other failed reforms. Malcolm M. Vernon Richards London: Freedom Press, , Then it will wither away, perhaps.
In a free society there will be no crime. Christie was right, but unfortunately, the Tifft and Sullivan book adds nothing to an anarchist theory of crime. It is mostly just liberal humanist moralistic whining and whimpering to the effect that the state is the real criminal. That, besides being self-contradictory nonsense crime is defined by law, which is produced and selectively enforced by the state , legitimizes the concept of crime, which presupposes law, which presupposes the state. Not only does power corrupt, power attracts the already corrupt. If AK Press or PM Press had even a slight interest in reprinting genuine anarchist classics, they should reprint this one.
But, who are the real criminals? Criminals are the real criminals. Am I being simple?
Better to be simply right than simply wrong. Preventive police patrol — that is, police driving around looking for trouble, or pretending to — was systematically discontinued, without notice to the public, in one neighborhood after another. The police still answered service calls, as the fire department does. The withdrawal of preventive police patrol protection had no effect on reported crime rates.
It had no effect on citizen perceptions of their safety. Police patrol is thus useless for crime control. Needless to say, no police department has, on the basis of this discovery, discontinued driving-around patrol with stops for doughnuts. Zack, who is handicapped, lived in Berkeley, California at the same time I did. Zack had been rather sympathetic to the arguments of libertarian psychiatrist Thomas S. But one has to have doubts about a psychiatrist whose wife committed suicide. Zack had a belligerent upstairs neighbor I forget his name , a paranoid schizophrenic who was threatening Zack with violence for no reason.
It takes a big bad brave man to threaten somebody in a wheelchair. Zack concluded, if Thomas Szasz thinks mental illness is a myth, he should meet my upstairs neighbor! We practiced direct action and mutual aid. How many of my anarchist enemies can say the same? If I recall, the persecutor committed suicide. It makes a sickly attempt to extend itself over all sorts of things which do not belong to it, or which it grasps only by doing them violence. Thence the expenditure of energy with which the State is reproached and which is truly out of proportion to the results obtained.
While the State becomes inflated and hypertrophied in order to obtain a firm enough grip upon individuals, but without succeeding, the latter, without mutual relationships, tumble over one another like so many liquid molecules, encountering no central energy to retain, fix and organize them.
George Simpson, tr. John A. Toggle navigation. Close Table of Contents. Author: Bob Black.