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Crime and Punishment in a Free Society


Would a free society be a crime-free society? We have good reason to anticipate it.

Don’t accuse me of utopianism. I don’t foresee a future of new human beings who consistently respect the rights of others. Alas, there will always be those who would invade the boundaries of their fellow human beings. Rather, I want to draw attention to the distinction between crime and tort — between offenses against the state (or “society”) and offenses against individual persons or their justly held property. We’re so used to this distinction, and the priority of the criminal law over tort law, that most of us don’t realize that things used to be different. Not so long ago, an “offense” that was not an act of force against an individual was not an offense at all.

What happened? In England, the early kings recognized that the administration of justice could be a cash cow. So, as to be expected, they grabbed on and never let go. As a result, the emphasis shifted to punishment (fines and imprisonment — for which the people, including victims, pay!) and away from restitution (making victims or their heirs as whole as possible).

Liberty-minded people should regret this change. Yet again, the ruling elite exploited the people for its own gain. It needed wealth to buy war materiel and allegiance, so it took it by force from the laboring masses, and corrupted the justice system in the process.

In The Enterprise of Law, Bruce Benson explains that before the royal preemption, customary law prevailed in England. One feature of this spontaneous order was that

offenses are treated as torts (private wrongs and injuries) rather than crimes (offenses against the state or the “society”). A potential action by one person has to affect someone else before any question of legality can arise; any action that does not, such as what a person does alone or in voluntary cooperation with someone else but in a manner that clearly harms no one, is not likely to become the subject of a rule of conduct under customary law.

Benson also notes that

prosecutorial duties fall to the victim and his reciprocal protection association. Thus, the law provides for restitution to victims arrived at through clearly designed participatory adjudication procedures, in order to both provide incentives to pursue prosecution and to quell victims’ desires for revenge.

The king’s peace

In such a system of law, one was not likely to see “offenses” without true victims. Since cooperation through reciprocal benefits is the key to the success of customary law, the system is likely to be kept within narrow libertarianish limits.

(John Hasnas’s online paper:  “Toward a Theory of Empirical Natural Rights” explains this process.)

That arrangement worked fairly well — until would-be rulers, who needed money to finance wars of conquest and buy loyalty by dispensing tax-funded jobs, discovered that there was gold to be had in the administration of justice.

Anglo-Saxon kings saw the justice process as a source of revenue, and violations of certain laws began to be referred to as violations of the “king’s peace.” Well before the Norman conquest [1066], outlawry began to involve not only liability to be killed with impunity but [quoting historians Frederick Pollack and Frederick Maitland] “forfeiture of goods to the king.”

The idea of the “king’s peace” started small but eventually expanded to all of society. The incentive was obvious. “Violations of the king’s peace required payment to the king,” Benson writes. As customary law was co-opted by the crown, the concept felony, arbitrariness in punishment, and imprisonment came to the administration of “justice.” The people were not pleased with the shifting focus from victims to the king and his cronies, so they had to be compelled to cooperate.

For example, royal law imposed coercive rules declaring that the victim was a criminal if he obtained restitution before he brought the offender before a king’s justice where the king could get his profits. This was not a strong enough inducement, so royal law created the crimes of “theftbote,” making it a misdemeanor for a victim to accept the return of stolen property or to make other arrangements with a felon in exchange for an agreement not to prosecute.

Benson sums up:

By the end of the reign of Edward I [1307], the basic institutions of government law had been established, and in many instances older custom had been altered or replaced by authoritarian rules to facilitate the transfer of wealth to relatively powerful groups. “Public interest” justifications for a government-dominated legal system and institutions must be viewed as ex post rationalizations rather than as ex ante explanations of their development.

Thus the criminal justice system as we know it is a product of state arrogation and a repudiation of individualism and libertarianism. This perverse approach to law was inherited by the representative democracies that succeeded the absolute monarchies in England and then in America.

For reasons too obvious to need elaboration, a system of justice aimed at restitution makes eminently good sense, especially from a libertarian perspective. Someone is wronged, so the perpetrator should, to the extent possible, make things right. In the case of murder, the victim’s heirs would have a monetary claim against the killer, as they do today in civil court; in the case of an heirless victim, the claim could be homesteaded by anyone who puts the effort into identifying and prosecuting the killer. The transferability of claims would apply in cases other than murder. For example, a poor person who was beaten could assign his claim, for a price, to someone with the means to apprehend and prosecute the offender. (That would be similar to civil lawyers’ working for contingency fees.)

At the same time, the principle of restitution undercuts the case for punishment, correction, and deterrence as direct objectives of the justice system. The point isn’t to make perpetrators suffer or to reform them or to make potential perpetrators think twice. What good are those to the present victim? Correction, deterrence, and even some suffering (say, shame and embarrassment) may be natural byproducts of a system of restitution, but they are not proper objectives, for where could a right to do more than require restitution come from?

Violence is so destructive of the conditions required by a community appropriate to human flourishing that its use is justifiable only when necessary to protect innocent life or to make victims whole. Thus, it cannot be legitimate to use force to punish, reform, or deter. Private nonviolent acts — for example, shunning — can have a proper role here. Also, a perpetrator who presents a continuing and persistent threat to others might legitimately be confined for reasons of community self-defense, not for punishment, reform, or deterrence.

Punishment is wrong, Roderick Long writes, because “after all, we do not think that those who violate others’ rights accidentally should be made to suffer; but the only difference between a willing aggressor and an accidental aggressor lies in the contents of their thoughts — a matter over which the law has no legitimate jurisdiction.”

Replacing crimes

That point is worth examining. If Smith harms Jones inadvertently, most would agree that Smith should compensate Jones, with force being permissible should Smith refuse to cooperate. But if Smith harms Jones intentionally, the only difference from the first case is that Smith had certain thoughts in his mind, or certain motives. On what grounds can we justify imprisoning or otherwise inflicting suffering on Smith purely because of his thoughts or motives? I can see none. Punishing people for their thoughts smacks of totalitarianism. That is why Long titled one of his papers on this matter “The Irrelevance of Responsibility,” his point being that (generally) the debt that a boundary crosser (rights violator) owes to his victim is the same regardless of whether the boundary was crossed intentionally. He writes,

By “responsibility” I mean, of course, more than mere causal responsibility, in the sense invoked when we say that the acid was responsible for the corrosion of the metal, or that an asteroid was responsible for the extinction of the dinosaurs. Judgments of causation are, of course, essential to the working of any legal system. But there is a narrower sense of responsibility, having to do with positive considerations of knowledge and control, as well as normative considerations of praiseworthiness, blameworthiness, and obligation; and it is responsibility in this sense that I maintain is legally irrelevant.

Long hastens to add that he does not mean that responsibility is entirely irrelevant:

[It] is only for the most part that considerations of responsibility are legally irrelevant, on my view. Hence, this discussion might more accurately (if less dramatically) be titled “The Legal Near-Irrelevance of Responsibility.” But the respects in which responsibility turns out to be legally relevant after all are, I shall argue, largely peripheral, and certainly outside the primary context in which responsibility has traditionally been considered paradigmatically relevant.

(To my knowledge, Morris and Linda Tannehill, Jarret B. Wollstein, and Randy Barnett are the first libertarians of our era to describe a system of justice based primarily on restitution.)

As Gary Chartier concludes in Anarchy and Legal Order,

Because there is no warrant for executions or punitive fines, and no warrant for restraint (which need not involve imprisonment) except as a matter of self-defense and the defense of others, there is no need for the distinctive institutions and practices of the criminal justice system.

In a free society the category torts would fully replace the category crimes, and restitution would fully replace retribution. That would be a welcome change in a society that imprisons more people than any other, often for nonviolent and victimless “crimes.”

This article was originally published in the April 2014 edition of Future of Freedom.

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    Sheldon Richman is former vice president and editor at The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.