Saturday, October 09, 2010

Let's get rid of the lawyers

A lawyer friend of mine once asked "why are you a libertarian?" I didn't have a good answer on hand so I said "Because we have too many lawyers". It didn't take me long to regret having missed the opportunity to explain my views in a serious manner, but having had a decade or so to mull it over, I realize that there is an element of truth in it.

I believe that the increasing "legalization" of society is both bad and unnecessary. By "legalization", I mean the fact that we need to consult lawyers -- either while making a decision of after we make a decision that exposes us to legal risk. The problem is that lawyers aren't cheap (of course, if they were, it would imply that their job were simple and each of us could be our own lawyer). The large fees paid to lawyers don't only represent a great drain on the productivity of society, these large fees mean that lawyers are inaccessible to many people in our society and consequently these people are vulnerable to threats of lawsuits against which they cannot defend themselves (for, here, and here).

To be clear, I don't mean to imply that lawyers are intrinsically engaged in immoral or parasitic conduct; given how our legal system is structured, their work in necessary and it is part of how our society organizes itself. Lawyers (as a profession) even go out of their way to provide counsel to those people who cannot afford to hire lawyers at market rates; however, such charity does not undo the fundamental injustice of the situation, in either its magnitude or intrinsic nature*.

With that being said, let's get to the point: how can we change our laws to reduce the need for lawyers (and truly place them on the list of "Unneccesary People")? I propose that we abolish any legal actions arising from the following:
  1. Misuse of speech (e.g. libel, slander, inflicting emotional distress): The remedy for bad speech is good speech.
  2. Misuse of confidence(e.g Breach of contract, release of secrets, fraud): Be careful who you trust. Liberty is inalienable, and all relationships are "at will".
  3. Social Management (e.g Intellectual property, victimless crimes): Social structures and norms should arise from the bottom-up, in a non-violent manner.
Notice that the one part of the legal system that I did not propose gutting is the tort system. I don't see any way around needing a very serious legal system when one person forces himself on another. All proposals that I've seen to reform the tort system are nothing more than attempts to make it easier for the uber-parasites (with their corporate protections and armies of lawyers) to bully and steal from everyone else.

Likewise, there will be some situations in which there is no straightforward principle by which to decide ownership (for instance, with joint possessions, such as when a marriage or business partnership is being dissolved). These will require legal intervention.

As for the offences that I propose to remove from legal jurisdiction, this does not mean that those behaviors (e.g. slander) are acceptable; it only means that they should be dealt with in a non-violent manner.

The first two categories that I mentioned can be addressed within a reputation-based system. If a person is telling lies, then it should be made clear that he is a liar. If a person reneges on contracts, then it should be made clear that he cannot be trusted with responsibilities. These issues can be handled in an unstructured manner (as they often are), but they could also benefit from a formal process analogous to a lawsuit. However, the difference would be that there would be no forced confiscation of property or imprisonment; the lawsuit would conclude by publicly noting that a person has been found to be in the wrong (or not) with respect to a particular dispute, and he may be given instructions on what to do to resolve the dispute.

The laws designed for social management (whether funding public goods, or enforcing some view of morality or professional standards) should be enforced by non-violent social pressure. I doubt that any centralized formal system would be needed for their enforcement. Tax law could be included in this list, but this gets into a much more radical proposal than what I want to discuss now.

*The law profession in many ways looks like a state-enforced cartel.

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