Federal Judges Aren’t Real Judges

[From my Webnote series]

From this facebook post, referring to this Youtube video:

Also discussed at KOL361 | Libertarian Answer Man: Oaths: With Kent Wellington): Go to around 32 minutes; from the transcript: “Just like in the US, in the federal court system, all these guys that they call judges, the federal judges, the Supreme Court judges, they’re not really judges. They’re just state agents whose job is to interpret the words written down on paper by other state agents.  That’s it.  Their job is not to do justice, which is what a real judge does.  A real judge tries to resolve a dispute between two parties based upon principles of justness and fairness.  These federal judges can’t do that because their job is to interpret the Constitution and federal law, which are just positive enactments written down on paper by a bunch of elected bureaucrats and members of the state.  So I don’t think they’re actual judges.  They’re not actually doing law.  What they’re interpreting is not law. (See Another Problem with Legislation: James Carter v. the Field Codes)

See also:

Stephan Kinsella https://t.co/zAEsMd0ePq pic.twitter.com/TH7iKDwToB

— This Is Common Sense (@Common_Sense_PJ) August 22, 2024

[Update: see the following comment adapted from an email to my new friend Nadia Nedzel ¹ about related matters:

It’s a shame Hasnas’s small but important output is not easily accessible online, because I think his Myth piece could be improved by clarifying that his critique applies mostly to cases where the judge is interpreting artificial codes like statutes, legislation, and written constitutions (e.g. the US Constitution) and does not apply nearly so much to the normal judge in a true decentralized system whose mandate is to do justice (e.g. an arbitrator in a decentralized libertarian anarchist society, or even a judge or jurist or jurisconsult in a system like the Roman Law or English Common Law.

What is interesting for example is how Roman jurists apparently, to some extent, would develop the law not only by real cases, but by hypothetical ones: Roman Law and Hypothetical Cases; and chs. 13 & 19 of Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), to-wit “Legislation and the Discovery of Law in a Free Society,” n. 147, and “Knowledge, Calculation, Conflict, and Law,” n.64. See also Hasnas: Common Law, Anarchy, etc.: Common Law Liberalism: A New Theory of the Libertarian Society and Two Great Arguments for Anarchy: Long and Hasnas]

From a comment by Giedrius Cikanavičius on Youtube:

“Best quote from the video: “In the federal court system all these guys that are called the federal judges, the Supreme Court judges, they’re not really judges. They’re just state agents who’s job is to interpret the words written down on paper by other state agents. That’s it. Their job is not to do justice. Which is what a real judge does. Real judge tries to resolve dispute between two parties based upon principles of justices and fairness. These federal judges can’t do that, because their job is to interpret constitution and federal law, which is just positive enactment written down on paper by a bunch of elected bureaucrats, members of the state. So, I don’t think they’re actual judges. They’re not actually doing law. What they’re interpreting isn’t law.”

Incidentally I got this insight from James Carter — see:

• Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009)
• The Unique American Federal Government (Oct. 26, 2009)

Nick Sarwark thinks my view is ridiculous. Of course, it is not what a “respectable” lawyer type would say. To not revere the American federal judicial system is unthinkable!

From the comments:

Nicholas J. Sarwark:

Defining judges you don’t like as not real judges is stupid.

Stephan Kinsella:

It’s not that I don’t like them. It’s that federal judges are not doing what judges to. They are simply interpreting statutes. They are not doing justice. Read what James Carter wrote in 1884:

“At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!”

Note I did not say this about state judges, who sometimes still do judging since they are at least sometimes still applying common law principles. Federal judges job is to construe, interpret, and apply arbitrary written documents—the Constitution, and federal law, which have nothing to do with justice or natural rights. If you understand the history and role of judges and the law, then it’s clear that the federal “judges” are not actual judges, since they are not even permitted to do justice, since their job is to apply the constitution and federal law, whether they are just or not (and usually they are not).

What is stupid, or perhaps just dishonest, is to construe what I said as saying “judges I don’t like are not judges,” since this is not what I said or implied at all.

Nicholas J. Sarwark:

“In the federal court system all these guys that are called the federal judges, the Supreme Court judges, they’re not really judges.”

Stephan Kinsella

Yes, and it’s not because “I don’t like them” it’s because there is no federal common law. The Federal system is wholly artificial and is defined by an unlibertarian Constitution, and Federal statutes (mostly unconstitutional–see Richard Epstein’s Takings) that are based on this Constitution. They are not judging based on private law (that is handled by states) but they simply interpret federal statutes. Again, 95% or more of federal statutes are unconstitutional, and 99% of them are unlibertarian, as is the Constitution itself. If you would like to debate or discuss this Nick, I’d be happy to, since you seem to have a different take. BTW my approach here is not dependent on an anarchist view of things. It’s just based on what law is. They are not judges because they are not trying to do justice. Their job is not to fairly resolve disputes between parties based on pre-established principles of justice. Their job is to construe “statutes”. I recommend again you simply read the single paragraph from James Carter. Or maybe Leoni, or Sartori. I am not just making this stuff up dude.

***

I also mention this in Legislation and the “Discovery of Law in a Free Society,” in Legal Foundations of a Free Society, at n.154:

… When the job of judges is primarily to interpret statutes—as is the case for most federal judges interpreting federal law and the written Constitution, since there is no federal common law (see Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)—then they are acting a mere functionaries interpreting words, not doing justice, since there is no reason to expect a document written by a government committee (legislation, the Constitution) to have anything to do with justice or natural rights. Thus, I have pointed out before that in this sense, and to this extent, these “judges” are really fake judges, not real judges.

See also the comments of Samuel Read on legal positivism, quoted in Kinsella, “Samuel Read on Legal Positivism and Capitalism in 1829,” StephanKinsella.com (Nov. 4, 2011):

… we observe every day men, and even legislators, pretending to reason concerning political justice and the general principles of law, as if there we no such distinction as that which has been here pointed out, and who seem to have scarcely the most distant comprehension that there is a natural code discoverable by the light of reason, to which alone reference ought to be had when any law … is brought into question either for the purpose of enactment or repeal. Instead of reasoning like legislators, such persons merely contend as lawyers; they but inquire what is, or what has been, not what ought to be; and, provided they can find a precedent, think they have no need to trouble themselves with any farther investigation as to right or wrong. They pronounce the two cabalistic words, “vested right,” and think themselves at once entrenched behind an impregnable fortress, without considering it as at all incumbent upon them to show that the investiture is consistent with real and natural right.

***

See also, Van Dun on Argumentation Ethics and and Federal Judges Aren’t Real Judges; and Van Dun on Lawyers and the Law:

In Frank Van Dun‘s paper on argumentation ethics, [see “Argumentation Ethics and Liberty: A Concise Guide”] “Argumentation Ethics and the Philosophy of Freedom,” [see Van Dun on Argumentation Ethics; now “Argumentation Ethics and The Philosophy of Freedom”] there is a fascinating discussion about what law and courts and lawyers have become: not justice-seekers, but technical interpreters of artificial rules. Van Dun argues that equality before the law

was a great idea, but of course the powerful, the rulers and their clients, often enough intervened in court proceedings and made a mockery of the independence of the courts of law, replacing them with boards of officials whose main function was (and is) to see to it that their master’s voice is heeded by all. The judges were replaced with “magistrates.” The jurists, whose main concern is the knowledge and application of the principles of justice, were replaced with legists, whose main occupation is to know and apply their masters’ wishes as these are revealed in legal edicts and codes.[27]

Nevertheless, even in this day of rampant legal positivism, the ideals of justice still fashion the way in which those boards and magistrates present themselves to the public at large and to their masters. Unlike bureaucrats and diplomats, the magistrates posing as judges do not claim authority on account of their loyal subservience to their masters, but on account of their “independence” from them. Paying lip service to the ethics of dialogue and argumentation is vitally important for maintaining not only their position in society but also their status as possessors of a science of necessary things. While positivism rules the curriculum in the law schools, telling their students that only “the law” matters and that “the law” is nothing but the set of legal rules, edicts and decisions promulgated by the authorities that other rules in the same set designate as “legal,” the schools never tire of instilling in their students the sense that the implications of positivism do not apply to the magistrates and the advocates they are being trained to become. Like scientists, they should be aware that they are supposed to answer to a calling that transcends loyalty to any social or political regime. Like scientists, they should feel entitled to claim immunity from arbitrary interference, admittedly not as a general human right but as a professional privilege. And like scientists in the Age of Big Politicized Science, they should not have any qualms about serving and assisting the powers that be as long as the latter keep up the pretence of their “independence.”

Albeit in an increasingly emaciated and perverted form, the ethics of argumentation still has a hold on the imagination as the bulwark of civilized co-existence, no matter how obscure the distinction between a scientist and a government expert, or between a judge and a magistrate, has become in public discourse. However, its force is sapped when the point of argumentation in a court no longer is to reveal which actions are justifiable and which are not but merely to determine which party complied with some set of arbitrary politically imposed rules. Then argumentation gives way to a contest in which one “legal mind” tries to outwit his opponent in a game that turns primarily on one’s skills in combining officially recognized legal classifications of facts, legal rules, other legal data such as precedents, and currently fashionable notions into “a strong case.” Similarly, the ethics of argumentation and dialogue loses its grip on the intercourse of scientists if convincing the authorities of the social or political relevance of one’s research becomes a priority.

The argument from argumentation is not a mere academic artifact without any practical significance. It underlies the Western tradition of the philosophy of law and its impressive harvest of principles of substantive and procedural justice, which command respect even after more than a century of systematic “debunking” at the hands of scientistic positivists and others for whom man’s reason counts for nothing and his voice (“vote”) for everything.[28]

[27] For an etymological explication of the distinction between jurists (“ius”) and legists (“lex”), see “The Lawful and The Legal” referred to in note 18 [From note 18: For the argument that “freedom among likes” defines the condition of order (i.e. the law) of the human world, see FRB, and my “The Lawful and the Legal,” Journal des économistes et des études humaines, 1995, VI, 4, p.555–77].

[28] On the distinction between speech (logos, Latin ratio) and voice (phonè), see Aristotle, Politics, I, 2, 1253a9–15.

1. Whom I met at a recent Louisiana civil code conference: The Louisiana Civil Code of 1825: Content, Influences and Languages; Past and Future: Returning to my Louisiana Roots. [↩]