Adjudication (Part 1: Judges)

TLDR: Criminal justice is important for protecting norms, and can apply to contract violation. Utopia distinguishes between local and universal crime, and uses professional judges, defended from corruption and bias via seclusion.

Prerequisites: World Government
Foundational to: Part 2

Justice is sprawling and complex. Pulling on a single thread naturally brings the broader picture into question. In my recent essays on policing, we began tugging on that thread. Now, we follow it to the next logical stage: adjudication — the phase between when an arrest has been made or a suit has been filed and when a bargain or verdict is reached. In many ways this is heart of the legal system, and it deserves a careful look to ensure all concerns — philosophical or pragmatic — are being addressed and balanced well.

Criminal vs Civil Justice

Here I’m largely going to be focusing on criminal justice, which assumes there is a suspect who is arrested because of a specific law being broken, and that the government is the primary party pushing for justice. But before getting into the details, I want to spend a moment connecting criminal justice with civil justice. In my eyes the distinction between the two is closer to an implementation detail than a difference in kind.

To see the connection, let’s first imagine a world where there is no strong government, and all justice is the product of individuals or groups suing others in a “civil” system of community adjudication. If someone is assaulted, they can sue the attacker for the damages incurred. If someone is murdered, their family might sue for damages. If the community is fair and strong enough to hold the wrongdoer accountable, no government prosecutor or distinction between “private disputes” and “crimes” needs to exist.

A natural objection to this kind of system is that it might let some villains off too easily. Consider someone who goes around murdering orphans who have no family to seek justice on their behalf. Or consider a skilled thief who simply buys insurance that pays out if he’s caught.

But also, as I discussed in my essays on speed limits and surveillance, there is an additional set of victims to these actions besides those immediately harmed: those who were benefiting from living in a safe society. If I might be attacked while walking down the street, this hurts my well-being even if I’m never actually attacked. Thus, if someone else is attacked, I believe that it would be fair to sue the attacker for the harm to my sense of safety. While the damage to any one bystander is low, there is something akin to a collective social damage to violent acts. Through this lens we can almost see criminal law as akin to a class-action lawsuit.

This 13th century illustration depicts weregild in the Holy Roman Empire, a system in which compensatory damages are paid (here, by the father of a murderous boy) to a victim’s family.

We can likewise imagine an opposite setup, where there is no civil legal system, and the government is the only party that can initiate a court hearing. Things like breaches of contract, car accidents, and copyright disputes could, in this world, only be handled by the state taking action. But… presumably they could still take action! In order for contracts to mean anything in this world, it would need to be a crime to break a contract, but presumably one could simply set up the law this way, and have an aggrieved party report to the government when a contract was violated.

Consider a mega-corporation that routinely steals the ideas and works of small artists in an unfair way. In our world, each of these artists might be able to sue the company, and they might even be able to form a class-action lawsuit. But taking legal action is hard, scary, and risky; most artists might not have the resources to stand up for themselves, and the company might pay settlements to the few who do, or use their power and influence to pressure lawyers not to help the artists. In the world where there are only criminal cases, the artists might be free to request help from the state and then leave it in the hands of the government to ensure justice is done.

There is, of course, the question of whether the criminal justice system is efficient and effective. Civil suits might be better able to bring in specialist lawyers and make speedy deals, improving the quality of both process and outcomes. But again, that is an implementation detail. Regardless of whether framed as criminal or civil, justice is justice.

Utopian Universal Justice

In my conception of Utopia, different laws are enforced at different levels of government. Local communities of various sizes may have specific laws, norms, and rules that they enforce according to various standards. Some communities may rely on arbitration in private courts. Some may use a religious guide, condemning people for less-than-holy lifestyles. But in all such cases, emigration out of these communities remains a fundamental right, including for those found guilty of violating local laws. Someone who lives in a region with a local government may always choose to leave that region, even if it means avoiding punishment for their transgression.

Three factors help mitigate this loophole, though the third requires us to understand how the broader Utopian legal system works:

First, banishment and public shaming are common punishments in Utopia, as they’re incapable of being dodged through emigration.

Second, emigration requires a destination, and many regions run background checks and block immigration when the migrant is trying to dodge the consequences of having broken the laws of their previous country. There are usually some places willing to take such people, particularly if their “crime” was some silly, cultural taboo, but options are often limited.

Now, in contrast to local laws, a universal law is one that holds everywhere in the world. Murder, slavery, theft, and assault,¹ for example, are always illegal. In addition to these (and other) basic crimes,² I believe that Utopia treats breach of contract as a universal crime. If two parties mutually agree to some deal, it is in the interest of all of society, not just the involved parties, for that deal to be honored. Those involved are encouraged to settle the issue out of court, often through a private arbiter, in the interests of efficiency or to avoid jail time. But if no settlement can be reached, the world government will probably get involved. Most crimes processed at the world-level are contract violations.

This brings us to our third mitigating factor: Residents of a city or region are often required to sign explicit social contracts holding them to the laws of that place in order to enter or stay past a certain age. The universal law requires those who sign contracts to genuinely understand the deal on offer (and be uncoerced) in order for the contract to be (criminally) binding. This means children (and non-human animals) are generally held to fewer standards.

Because the laws of the world government apply to everyone, they must be both uncontroversial and simple. The Futarchy puts a significant weight on having a legal code that fits in a single book³ capable of being read in a single day by a precocious 13-year-old. This is partially accomplished through federalism—leaving all laws that could be handled by local governments to the local level. But it’s also accomplished through public prizes for anyone who can rewrite the laws of the world in a simpler form⁴ (without losing fidelity).

Expert Judgment

Let’s start our investigation into the adjudication process itself with the question: who decides whether someone is guilty? In many countries, including the US and UK, serious crimes require a verdict to come from a jury. Others, such as the Netherlands and Israel, entirely rely on professional judges to decide cases. (And some, like France and Germany, use a hybrid system.) The main reason for having random citizens produce a verdict, as far as I can tell, is as a check on corruption and tyranny. Judges have a lot of power, and historically (as well as in less civilized⁵ parts of the world) judges have been prone to being tools of the state and/or organized crime at the expense of the people. By putting the burden of judgment on the shoulders of random citizens, we reduce the risk of external incentives poisoning the process, and do so in a transparent way that helps establish trust.⁶

But while resisting corruption is a laudable goal… have you met people? Especially those who have nothing better to do than sit on a jury, or are too incompetent to mention jury nullification or otherwise get out of it?⁷ For every well-informed, attentive, wise member of the jury, you’ll find a half-dozen people who, in an ideal world, would never be issuing life-changing judgment on a stranger. Involving laypeople may be a step towards democracy, but I fear it also leads to three steps away from technocracy/meritocracy. Juries are not just vulnerable to ignorance, but to prejudice, emotional manipulation, and plain inattentiveness. The biases introduced by the selection process alone should be worrisome.

And while we’re on the topic, I should also note that forcing twelve people from their normal lives for the duration of a (sometimes lengthy!) trial is expensive. It’s not extremely expensive—most trials are less than a week long and most highly productive people will dodge jury duty—and one could argue that it’s worth it. But it’s still a cost in the tens of thousands of dollars per trial that could go towards other things (e.g. prizes for local journalists covering the courts).

Corruption needs to be fought against. Judges should be those of the highest character, and unimpeachable in their devotion to ideals. But the way forward is to actively defend wise elites from outside influence, not to resort to demagoguery.

Utopian Judges

Local governments may use juries, priests, robots, or slot machines to determine the outcome of their trials, but I believe the Utopian world government relies entirely on professional judges⁸ to handle its universal laws. Many resources are spent attracting wise, disciplined, and honorable experts for this role, including hefty salaries and teams of elite support staff. But the selection process to be a judge is also extremely strict, and because they preside over the entire world, the number of judges per capita is extremely low (~1 judge per million people). As a result of these low numbers, at any given time there are many thousands of cases per judge.

This shortage is lamentable, but also intentional. The Futarchy government intentionally keeps the selection criteria strict most of the time to maintain a high standard. If the number of cases per judge gets too high, standards are sometimes relaxed and more judges are hired. The Futarchy also sets a “tempo” to the justice system, which limits the maximum rate at which a judge can handle cases, usually to a fairly small number like 20/year. This is meant to encourage slow, careful verdicts. Judges are free to take as long as they’d like with a case, but in the absence of a rate limit, the most hasty judges would be the ones deciding the most cases.

By virtue of being carefully selected and highly compensated professionals, judges can be held to an extreme level of impartiality and scrutiny. In my Utopia, upon being hired, judges go through a two-year sequestering process where they and their family move to isolated communities⁹ called “cloisters” and spend months studying law, philosophy, and other subjects to prepare for their upcoming responsibilities. Cloisters also often have small monasteries, schools, laboratories, and other timeless institutions where people can focus on truth and enlightenment, away from the hustle and bustle of the outside world. The core property of a cloister is that news from the outside is heavily restricted by an organization of judicial managers called “wardens.”

Those in a cloister who aren’t wardens (including judges) have no easy access to news or visitors, and wardens go through a vetting process almost as strict as that for judges in order to maintain the information firewall.¹⁰ The two-year sequestering applies not just to the judge, but to all who would come and live in a cloister, with families moving progressively inward until finally being allowed to freely interact with others in the heart of the community. The natural two-year lag time for news inside a cloister¹¹ combined with the absence of visitors from outside means judges are very hard to influence, at least when it comes to specific cases. This isolation is considered somewhat sacred, and the local governments of cloisters often banish those who violate the spirit of their system.

Another factor ensuring exceptional impartiality is that cases are assigned to judges in a fairly random way. Judges usually specialize in either violent crime, property crime, or (most commonly) contract crime, but within these divisions the allocation of cases to judges is completely random. (Judges (and senior wardens) can also recuse themselves from (or veto) specific cases if they believe there happens to be a conflict of interest, in which case it’s randomly re-assigned.)

Yet another factor helping impartiality is that Utopia takes “justice is blind” very seriously. Wardens usually redact information (e.g. the names, faces, and sometimes the ethnicities of those involved) from the cases that judges hear, and judges typically never meet anyone directly involved in the case. Instead, each court case is effectively a database. A judge is given a huge collection of information all at once, gathered by law enforcement, the defendant, and other involved parties. This case data will almost always involve transcripts of testimonies, as well as physical evidence, emails, photographs, recordings, and whatever else the involved parties believe is relevant. Judges are encouraged to ask questions related to their cases; many of which are transmitted via warden to outside the cloister, producing follow-up testimony or domain expertise.

Judges are compensated at a flat rate and are given a fixed-length tenure of twelve years (not counting the two year sequestering), after which they are forced to retire, often moving into academia or living off their savings. A judge can, in theory, hear only a few cases and collect a hefty paycheck for mostly sitting on the beach all day, but the hiring process is so strict that these kind of parasites almost never actually get hired, and judges are instead selected for being hard-working and worldly enough to empathize with those involved in the cases they hear, even after more than a decade in seclusion.¹² The rulings of each judge are public information, and the prevailing culture expects published explanations about how and why each judicial decision was made. Prediction markets about both how many cases a judge will hear and how many of their verdicts will be reversed upon appeal are used to determine who is a good fit for the job.

But how do trials actually happen, especially with so many cases per judge? In Part 2 we’ll explore various procedural desiderata and how to handle trials in practice.

1. Serious crimes that are perceived differently in different cultures, such as rape, burglary, and fraud, are usually not universal crimes per se, but are instead heavily punished by local governments and/or shoehorned into one of the universal crimes. Rape, for instance, is usually classified as assault and/or (temporary) slavery. Judges are instructed to take local norms and culture into account when weighing in on such cases.

2. Notably absent from the list of basic crimes are victimless crimes, such as drug crimes, prostitution, and gambling. These crimes are frequently illegal on the local level, however. The one major exception here is private ownership of weapons capable of killing large groups of people, including guns, which is held to be illegal as it challenges the world government’s monopoly on violence.

3. The legal code is, of course, in the global language.

4. I also discuss the process of simplifying laws (around technology protocols/standards) in my essay on customizable software.

5. One reader objected to this term, but I think it’s extremely appropriate. Civilization is the project of setting aside crude contests of power and agreeing to be bound by principles and ethics. Corruption and tyranny are innately uncivilized.

6. The key word is “reduce” rather than “eliminate.” Juries can, of course, also be corrupted, extorted, pressured, and influenced.

7. I’m being somewhat hyperbolic here. Jury duty can be a very worthwhile thing to do. My basic point is that most people are not exceptionally wise, even in a group.

8. This pool could be characterized as a “supreme court,” but I believe this term obscures more than it illuminates. For instance, the Judges in my conception of the world government don’t really weigh in on the same cases. There are also thousands of them, meaning they not only don’t really work together—they don’t even really know that many others.

9. My guess is that remote islands or mountainous regions are natural spots for a cloister.

10. In some ways wardens are even more carefully selected than judges. Honor and ethical integrity, for example, are paramount for wardens. Ultimately, because there are many more wardens than judges, and they’re lower status, wardens are less heavily selected, overall. But a core part of warden culture is that wardens must watch each other and check for corruption, with various corruption prediction markets serving as incentives for whistleblowers.

11. Extremely important news events, such as wars or technological breakthroughs, are brought into the cloister (after careful consideration) by the wardens. And of course, some news leaks in through the judicial cases, which sometimes contain relevant details about the world.

12. The Futarchy can, of course, fire specific judges with legislative action, but this is broadly seen as both inefficient and a corrosive interference with the judicial process, thus reserved for extreme cases such as blatant corruption.