SHOULD
CRIMINALS BE PUNISHED ?
The purpose of this lecture is to examine whether a truly
libertarian justice process is possible. By “truly libertarian”, I mean one
which dispenses with all the apparatus of state-promulgated laws, state courts,
state prisons. Most libertarians are anarchists. They are coherent anarchists,
though. The other species of anarchists, the “leftist” or “trade-unionist”,
cannot come up with a convincing answer to, precisely, this question of
justice, i.e. How do you give each one his own ? A central issue to
life in society, I would say. Libertarians do have an answer to that question,
and it is called property rights.
Defining and enforcing property rights is the way to ascertain what each one of
us is owed in society. Thus, there is an objective measure of knowing whether
we are deprived of our due and whether we have a cause for seeking justice.
Libertarians treat this problem of “How
do we give each one his due ?” objectively,
as opposed to arbitrarily as all statist and leftist anarchist systems do.
However, even among libertarians, there are people who do
not believe one can dispense with the state in the provision of justice. They
maintain that the provision of justice is one of two reasons for keeping a
minimal state apparatus (the other being relationships with other states,
through diplomacy and defence). It seems that from the left to the right of the
political spectrum, there is a strong consensus that justice cannot be rendered
substantially differently from the way it is today, that is by state courts,
and that the guilty party should be condemned to a deprivation of money in the
form of a fine paid to the state, or a deprivation of movement in the form of a
prison term, or both. Many jurisdictions add the death penalty, and a small
number use beatings or maiming. Violence, it is believed, should be the answer
to violence.
Yet, it is clear that punishment does not work.[1]
Firstly, violence against the author of a crime does not negate the original
violence perpetrated against the victim, it simply contributes to the total
amount of violence committed in the world. Secondly, the deterrent effect of
punishment has still to be proved. Throughout history, the most horrific
tortures publicly inflicted on delinquents, have never acted as a real
deterrent ; if they had, our forefathers would have enjoyed the benefits of a
crime-free world. If punishment were a deterrent, jails would be empty, and if
jails worked, they would not be needed. Thirdly, this cycle of violence does
not seem to benefit anyone. It has no redeemable value to the criminal ;
indeed, it is generally accepted that prisons are schools for crime. Prison
terms are not only grossly inefficient, but they are irrational as well. They
put the costs of dealing with criminals squarely on the shoulders of the
victims or potential victims. (It is one of the few genuine discriminations
remaining against women in today's society that they have to bear the costs of running
detention centres when between 80% and 90% of the inmates are men).[2]
There is an additional concern to a libertarian, however,
and it is that the present procedure of justice is based on a collectivist
principle, which places “society” clearly above the individual.[3]
Justice is not rendered to the victim ; justice today is a matter between the
alleged criminal and society. The victim's absence is conspicuous, especially
under the Roman law system. The trial is conducted by a prosecutor who does not
represent the victim, but acts on behalf of “society”. Even when the victim
withdraws his complaint, the proceedings against the aggressor will continue.[4] For the purpose of a criminal action is to
convict and punish a criminal, it is not to obtain a just compensation for the
victim. Whether the victim is insured and has collected damages from his
insurance company, is a matter independent of the court case. The judicial
system is not concerned about the victim’s fate.
In other words, state organisations have confiscated the
rights of the victim. They surreptitiously allege that all crimes are committed
not so much against a person as against “society”.[5] Now this very notion of a crime against
“society” leaves the door wide open to the worst manifestations of fascism. A
crime is what the government says is a crime. For one government, it can be an
offence to open your shop on Sunday, and for another, on Saturday ; bigamy is a
crime here, but is quite accepted in the Islamic world ; hundreds of millions of
people live under governments which would have anyone caught drinking wine
sentenced to a public whipping, but which are happy to let you smoke pot, and
just as many people live under governments which will throw you in jail for a
cigarette of marijuana, but will actually recommend that you drink a glass of
wine a day. With this logic, there is no objective reason why a government
should not decree that it is criminal to be red-haired, to turn your back to a
mosque or to attend this conference. So long as justice continues to be
rendered in the name of society, we shall remain at the mercy of those who
claim to speak in the name of society and who can declare at whim that this
individual is a criminal and that this one is not.
Yet our most ancient definition of justice[6]
is phrased precisely to protect us from the arbitrary actions of those in
power. The fundamental principle of justice in our Judaeo-Christian society is
the biblical teaching : “an eye for
an eye, a tooth for a tooth”. The Hebrews saw in
this identity of crime and punishment – “an eye for an eye”
- a great advance on what went before. It meant that at least there was a law
to limit the arbitrariness of rulers ; they could no longer chop a hand off
someone who had merely stolen a chicken.
The express implication of
“an eye for an eye...” is that it teaches us that there is no such thing
as a victimless crime. If no tooth has been broken, then no crime has been
committed. This is fundamentally libertarian. What you do with yourself, or
what two consenting adults do together, may be morally wrong, but why should it
be declared illegal [7] ? There is a fundamental difference between a
vice and a crime. A vice is not a crime.[8] Thus, if any of you would like to smoke something more
flavoursome than Marlboro, or read something more spicy than Playboy, you may invoke Exodus XXI, 23,
in your defence.
However if “an eye for an eye” is a progress from arbitrary
judgments, it is not applicable. The great libertarian philosopher Murray
Rothbard is one of the few modern authors who wants us to apply literally this
biblical precept of “an eye for an eye”. In a somewhat surreal chapter in his The Ethics of Liberty, he tells us of
executioners beating, or stabbing, or breaking bones, of a convicted aggressor,
exactly as the aggressor did to his victim. We are supposed to accept that this
process creates an equality between the crime and the punishment. It is one
thing, though, to break the left leg of a sailor in a bar brawl after a heated
dispute, it is something else to break the aggressor’s left leg in cold blood
in a torture chamber. The pain and suffering caused to one person by certain
actions can never be identical to the pain and suffering the very same actions
would inflict on another individual. For instance, if you go by the principle,
“an eye for a eye”, what do you do to a rapist ?
This is why in every society, it seems, the law has
attempted to create an equivalence, as opposed to seeking an identity, between
crime and punishment. It is not an eye that prosecutors will claim for an eye,
but a deemed equivalent in the form of a prison term or a fine. The problem
that arises here is that this equivalence is itself created arbitrarily.
Legislators and judges have never been able to find a punishment that fits the
crime objectively.
So, let's summarise what we have covered so far. We have
examined what I believe are the two distinctive features of a state system of
justice. First, society exerts retaliatory violence against convicted offenders
in the form of a fine, a prison term, or even the death penalty. This is done
arbitrarily ; the same offence may draw a different punishment in two different
jurisdictions or at different times. Think of blasphemy, homosexuality, rape,
treason, adultery, or substance
abuse… Second, the victim is not part
of the judicial process. It is as if society nationalises the pain and damages caused to victims. This is
collectivist mentality at work.
What I propose to do now is to take you through a broad
description of what another paradigm of justice could look like, one that would
reverse the process, one that would place victims and not society at the centre
of the system and consequently would seek to stop the cycle of violence. The
purpose of such a system would be restitution to the victim, a full
compensation for the loss and damages he or she suffered.
In taking this approach, we will be moving away from the
traditional notion of criminal justice, which is based on the moral notion of guilt and punishment,
to look only at the concepts of contract law. This approach is clearly within
the traditional definition of justice, the rendering
to each person of his own. What this definition means is that justice has
to do with property rights, and only with property rights, and their violation.
Where, I wonder, do we get that idea that justice calls for punishment ?
Think about this : If a return to the status
quo ante were possible and were effected, justice would have been rendered
and no punishment would be justifiable. So, is the next best solution not a
full compensation for the damage caused, i.e. to create a situation which
cannot be the status quo ante, but
strives to be as near to it as possible ? If the blinded victim's eyesight
cannot be restored, at least he is entitled to some compensation from the
aggressor for the loss of his vision, maybe in monetary terms or otherwise ;
but where is the benefit to anyone of taking the aggressor's eye or of keeping
him behind bars ? What is the rationale of punishment ? Punishment is
a sort of ritual, of climax. Punishment may satisfy deep psychological impulses
for violence and vengeance, the very impulses which it should be the purpose of
civilisation to eradicate, but which people who lust for political power will
be only too keen to manipulate. Which is why this question of justice is
central to a free society.
A judicial process based on mere restitution is a simple
one, at least in theory. The only issue is the restitution to the victim of
what is rightfully his - that is, his property or the equivalent in value, plus
loss of time, opportunity cost, cost of retrieving the property from the
criminal, etc. The judicial process starts with an issue of knowledge : Did a
violation of property occur ? Who perpetrated it ? Can we give the
property back to the owner ? If not, what is the equivalent value the
owner is entitled to ? Justice is
limited to this matter of knowledge and restitution, it has nothing to do with
punishment, and there is no need for so called “legislation”.
Self-Interest Dictates
That We Be Our Brother's Keeper
If we accept that there is no crime unless a victim has been
identified, and that there can be no judicial action other than the seeking of
restitution to the victim from the authors of the crime, we find ourselves
faced with a very big problem indeed : Is restitution always possible ?
Let me illustrate this question with a few examples. When a
window is broken, it looks easy for a judge, with the advice of experts, to
assess the damage and get the stone thrower to pay for the cost of replacement
and for any other collateral damages, such as a new carpet if rain has spoilt
the existing one. If a car has been stolen, the convicted thief will be
required to return the car, of course, and to pay for what are easily
assessable damages, such as the costs of police time in locating him and the
car, such as the unauthorised mileage, fuel consumption, wear and tear, and the
rental of a replacement car for the owner, etc. The problem of restitution
appears more complex, indeed insurmountable, when it comes to situations like
that of murder. What restitution is possible in case of murder ? And to whom
should the compensation go ? Maybe to the heirs. But let's assume a more
difficult case, the savage murder of a young child. This is indeed an act that
cannot go unsanctioned. Yet, there are no heirs here to collect compensation.
The parents ? Well, one could argue, if cynically, that, in monetary terms,
the parents are better off now that
they are saving on toys, food, school tuition, vacations expenses..., all
savings which will promptly amortise the costs of an unexpected funeral. There
is, of course, the psychological pain and distress, but how does a judge put a
value on grief. And if the parents themselves are found to be the criminals
(these horrors happen, don't they ?), who is entitled to seek
damages ?
Let's also consider the case of a pensioner, living in
isolation, as, sadly, so many do nowadays. His slain body is discovered one
morning by his neighbours. No one weeps over his death, and the pension fund
actually hands out one less pension. Who will bother to go through the trouble
of finding the murderer, and who, in fact, is entitled to claim any restitution
for this loss of life ? The paradox in these circumstances is that the
criminal would be better off systematically killing his victims, because if the
victim is no longer there, it seems no one may seek legal action. Without a
prosecutor acting on behalf of
“society”, it looks like my libertarian judicial process guarantees
impunity to serial killers of little old ladies.
This opinion sells the resourcefulness of the market short.
Government today makes solidarity between human beings compulsory, but this
solidarity exists naturally. It generally exists between family members, also
between members of the same church, the same village, the same firm, trade
union, cultural association, etc. My point is this : The state has confiscated the
solidarity that exists between people. If we privatise justice, we give back to
the people the possibility of re-creating between themselves the network that
exists in any society, except in our social-democratic and socialist models.
If I knew what these market solutions could be, if I knew
what people can invent when they are allowed to do so, I would pretend to limit
the resourcefulness of the market to that of my little imagination. My ambition
here is limited to sketching a few scenarios and considering with you whether
they are plausible. For instance, in my last example, I mentioned a pensioner,
without any family ties, without any affiliation of any kind. This isolation is
unlikely to happen in a libertarian society, for reasons which I cannot explain
in the time frame of this lecture, but let us assume isolation is the case
here. Even in these extreme circumstances, good old self-interest will ensure
there is protection for even the most misanthropic character. How does
self-interest and voluntary solidarity work in situations like the old
pensioner's ? I suggest the pensioner's neighbours could well pay an
insurance company for a contract guaranteeing a capital amount to their Tenants
Association or to their favourite charity in the event of the pensioner's
murder. The landlord himself might also subscribe to such an insurance
contract. Why would they do this ? Because any individual without life
coverage could become the target of a criminal, and of a criminal who would be
guaranteed impunity. This is not the sort of situation you want in your
neighbourhood. It is not a strong sales argument to put to potential tenants
that a designated victim lives in the same building. Thankfully, violent crime
is a rare occurrence in society, and even rarer in a libertarian society which
does not display the example of institutionalised military and police violence
; thus, premiums to insure against the minimal risk of murder would be
extremely low (indeed, they are already today). They would be affordable to all,
including cost-conscious third parties, like landlords, neighbours, and, even
more, of course, to rich philanthropists. The latter, freed from the burden of
taxation, would deem it their moral duty to insure the poorer lot in society. I
would suggest also that many charitable institutions will buy a premium on the
life of small children and destitute individuals, on the ground that it is
their charitable purpose to do so, and that, for a small premium, they stand to
collect a sizeable capital, if, against all odds, one of their insured party is
indeed murdered.[9]
In turn, the insurance company will either insist that the
insured party is affiliated to a protection agency (a private police), or the
insurance company will affiliate itself the insured party to such a protection
agency, on the ground that a protected party is less likely to be assaulted. If
the protection agency failed to solve too many cases, it would rapidly lose
clients, so it is in its interest to track any and all aggressors, whoever the
victim is, in order to maintain a competitive advantage.
In a libertarian society, the objective of the convicted
criminal is to make good his victim as soon as possible and recover his
freedom. The victim has no objection to a prompt restitution. So they both
agree that the criminal's revenues, save for an amount to ensure his
subsistence, will be assigned to the victim until such time as full restitution
is effected (this procedure is followed today when someone has filed for personal
bankruptcy). If the criminal does not hold a steady job, or if it is deemed
that he could renege on his obligation, his victim may ask the court that he be
detained in a labour camp, where the criminal will be encouraged to earn as
much as possible. Indeed, it becomes the interest of the camp owners as well
that as much value as possible is generated by their inmates. Even if it would
take more than a lifetime to pay off his debt to the victim, the victim and her
insurance company still want the criminal to work under good enough conditions
so that as much as possible of the restitution is effected.
The concept of forced labour evokes immediately some of the
worst episodes in the history of places like French Guyana and Australia. With
a difference, however : Convicts in Australia and Cayenne were never asked to
do anything useful, whatever talents they might have had. Quite the reverse.
Work in Western labour camps was not meant to produce anything. It was pure punishment, repetitive, boring, and above
all, and purposely, depressingly useless.[10]
This
is exactly the reverse of what would happen in a system
centred around restitution to the victim and not punishment in the name of
“society”.
What is important here is that the relationship is between the
criminal and the victim. Should the victim decide at any moment that he no
longer has a claim against the criminal, that he considers himself fully
compensated, the criminal is automatically released from all his obligations.
Why should someone who is not the victim have any say in the matter ?
There can be no such thing as a legitimate condemnation by “society”, that is
by people who have not suffered the aggression. (As a concomitant of this,
there can be no revenge that the criminal may rationally claim against
“society”).
My only ambition at this point is to make a convincing case
that no one would be denied justice in a stateless society. There are many
parties, other than a “benevolent state”, who can take an interest in meting out
justice to even the poorest members of society.[11]
When the only conflicts in society concern private property
rights, and there are none of the imaginary crimes that politicians invent, the
cases brought before the courts are far fewer (Ask yourselves whether our
courts and prisons would still be jammed, as they are today, if there were no
longer tax offences and drug offences ; these victimless crimes account for
half the convictions meted out by judges in France and the United States).
Independent judges, self-employed or working for private justice agencies,
remunerated by the parties, would be far more effective than state-appointed
ones. Why ? Because litigation is costly, insurers and their clients will bring
their case only to those judges who are known for their fairness and equity -
Who wants the costs of an appeal ? Private justice agencies would quickly
lose business if their verdicts were too often contested. When the justice
agency delivers a verdict of restitution, it will be after ensuring that the
victim who is to receive the restitution is really the victim, that the
criminal who is to pay the restitution is really the criminal, that the amount
set for restitution is fair. It is not only the reputation of the justice and
police agencies which is at stake, but their financial well being as well. The
best guarantee that the parties to a court action can have that the proceedings
will be fair is that private judges and justice agencies will be liable to them
for any misjudgement.
This potential personal liability of the judge to both the
plaintiffs and the defendants is one of the main differences between a statist
system of justice and a libertarian one. A judge in a libertarian society is
accountable for his verdicts. Unlike what happens in a statist system,
he cannot expect to render a verdict and, if proven wrong,
remain untouchable. His function is to restore peace between the parties. This
objective cannot be achieved if a judgement is
unfair to one of the parties, and if that party has no
possibility of restitution from the author of the misjudgement. When a party
has been wrongly condemned for a crime and made to pay damages, the judge
should become liable to compensate the innocent for the financial loss suffered
and for the tarnish to his reputation. Conversely, the victim (and/or his
insurer) could seek compensation from a judge who has acquitted the true author
of a crime, thereby depriving the victim and the insurer of due restitution.[12]
And because the ultimate client of the private judge is the
insurance company in most instances,
the poor receive as good a treatment as do the rich. Indeed this happens
today : the insurance company of a Rolls Royce driver does not automatically
win over the company which insures a 2CV driver, even when they settle out of
state courts.
One wonders why justice ever concerned itself with the
notion of guilt (Probably a ghost from the time when all justice was rendered
in the name of God).[13] Guilt belongs to the realm of morality. We
may cast moral judgements, and, indeed, we ought to, when certain behaviours
offend us. We ought to teach our moral beliefs and practice them. Being morally
right, however, does not give us a claim on anyone. For if we agree with
libertarians that all rights are property rights, we will agree also that no
one may claim a moral law as her property. Hence, no restitution is due (what
would it consist of, and owed to whom ?) by the mere fact a moral law has
been violated without a corresponding violation of a property right.
Several objections spring to mind immediately.[14] The first one is that this system of justice
puts a monetary value on every misdeed. Marxists would deride my concept of a
libertarian
justice process as the ultimate step in turning every human
action into merchandise. This is only one way, however, of looking at the
matter. Just as marriage is more than a contract
defining the mutual obligations of the spouses and the
division of their assets, so there is a lot more taking place in any judicial
process, libertarian or not, than the pursuit of restitution. There are a whole
range of emotions, thirst for revenge, hatred, fear, guilt, compassion, which
of course cannot find any equivalent in monetary terms. But is it the purpose of
the judicial system purpose, impartial as it should be, to promote these
emotions ? As we noted earlier, there is no punishment which naturally
fits the crime ; punishment is always arbitrary. Restitution, at least,
establishes a direct link between the aggression and the action taken against
the aggressor.
Given that verdicts are always arbitrary, can’t it not at
least be said that all criminals under the present statist system are equal
when serving their sentence ? Well again, not really. Two individuals may
be variously affected by the same prison terms and may even face the death
penalty in a different state of psychological and spiritual preparedness. Even
the seeming equality “an eye for an eye...” is delusive : The painter's eye is
worth more than the musician's. Likewise, the obligation to pay their victims
for the damage they caused will not have the same impact on two criminals. A
millionaire will find it a lot easier to compensate for a car theft than an
unemployed rogue. Millionaires, however, generally do not feel the urge to
steal cars. This is because, if having reached their financial position, they
have other values, and social integration is important to them. Restitution may
not bankrupt them, but it is conceivable that their social status and
reputation will be severely and permanently affected by a condemnation for
theft. It is falling into such disrepute which constitutes a very real sanction
for the rich man, albeit it would not so affect the uncouth slob.
Should An Aggression Not
Lead To The Forfeiture Of The Aggressor’s Rights ?
It seems to me difficult to argue, as Rothbard does, for
both restitution and the forfeiture, because of his aggression, of the
aggressor’s rights. Any condemnation to anything over and above restitution and
compensation for all collateral costs, such as damages caused by the
aggression, compensation for police and court costs, legal fees,… is, in my
view, purely arbitrary. This arbitrariness becomes especially manifest when one
considers murder. Many libertarians maintain that the murderer, having taken
someone’s life, has forfeited his right to his own life.
Inflicting the death penalty on a murderer may satisfy
certain feelings of vengeance and some people may believe it deters future
criminal acts, but it is irrational in a restitution-based system. If my own
life could be taken to replace the one I have cut short, there might be some
reason for so doing. It does not seem, however, that science is anywhere near
inventing a transfer-of-life machine. So why would my killing someone would
mean that I forfeit my own right to life ? Let’s assume, for instance, I burgle
my neighbour’s house and walk away with his television set. I have deprived him
of watching his favourite soap opera or football match. Does this mean that I
have forfeited my own right to watch the programs I enjoy ; or does it
mean that I now owe my neighbour his television set, or another one just as
good, plus compensation for the aggravation ?
If my stealing a television set does not forfeit my right to own a
television set myself, how does my stealing a life forfeit my right to my own
life ?
A few libertarians argue
that the forfeiture of a convicted murderer’s right to life does not imply the
death penalty; all it means is that the murderer’s right to life is transferred
to the victim’s heirs, and it is up to them to decide whether the death penalty
is applicable or not. It is therefore a case of restitution, in the form of :
“a life for a life”. The test of whether this transfer of rights to life is
vengeance or restitution may be evidenced by the following example: Suppose
Nikita slits my father’s throat and is duly convicted for this murder. I am my
father’s sole heir, Nikita’s right to life is transferred to me, I may use her
as I wish, enslave her, or have her executed, and sell her organs for
transplants… An exciting proposition, maybe, but there is more to it than this.
For in a genuine restitution-based system, in which this right-to-life
forfeiture would be the norm, I now have the privilege to kill whoever I wish
with total impunity. I can go to my old
foe Michael and lodge a bullet between his eyes in broad daylight and in
public. I shall be convicted of murder, of course, but when Michael’s heirs
come to claim my life, I shall tell them : “You may have Nikita’s, she is
yours. I have taken a life, I give you another just as good”. To argue that only my life will do is to
argue the case of vengeance, not of restitution.
These efforts to rationalise the death penalty seem vain to
me, even bordering on the absurd. There is nonetheless some merit in the
objection that restitution may in certain cases let aggressors off lightly. It
could be a reason why, in order to demonstrate their own personal commitment to
the highest standard of integrity, many individuals might wish to adhere to
communities imposing stiffer penalties to their members should they breach this
high standard. For instance, if a thief is also a devout Moslem, a judge will
order him to effect the proper restitution to the victim, then, when this is
done, the judge may well decide to hand the thief over to his community, if its
leaders so demand, to be chastised as stated in the Koran, a fate the thief
would have brought upon himself deliberately when he embraced Islam.
These stricter communities will flourish, as people feel
more confident dealing with their members[15],
not because punishment is any guarantee that people will behave - we have seen
that punishment does not act as effective universal deterrent -, but because
the individuals who accept willingly the risk of such punishment are those who
know they are unlikely to commit any serious offence. Old-fashioned punishments
therefore would not disappear from a libertarian society, even if its judicial
system is based on restitution. The market would ensure the survival of
punishments. Nobody would be imposed punishment (and I argue here nobody has
the right to impose it) ; punishment would be meted out only to those who
have sanctioned in advance the use of punishment on themselves. Of course,
those who are not confident enough in their capacity to refrain from aggression
would not join voluntarily a community practising some sort of strict sanctions
for criminal behaviour. They might thereby exclude themselves from certain
positions in society which require high moral standards.
In the limited format of this paper, I have attempted to
show that, while no measure can recreate exactly the status quo ante, restitution is a less arbitrary method than
punishment for dealing with criminals. Restitution can be assessed in monetary
terms or in any other terms satisfactory to the judge and the victim, such as
hours of labour at the discretion of the victim, whether for his own benefit or
for some social and community purpose that he supports.
A restitution-based justice system, in addition, reduces the
total amount of violence present in society. This is because such a system
disregards all victimless crimes, thus drastically lowering police intervention
from current levels. This reduction arises also because a strict
restitution-based system offers at all times the possibility of an amicable
settlement of all issues : Insurance companies settle thousands of claims
every day between themselves without recourse to state courts.
I believe I have also sketched a few reasons why even the
poor in society would not be denied access to private justice. They will have
the right to sell their claim to insurance companies or specialised agencies
which will finance the collection process against the offenders. There is no
need for a benevolent state to ensure the provision of justice to all. The
market is a great deal more creative than I am, and no doubt more efficient
solutions than the ones I have mentioned will be found. My purpose here is only
to demonstrate that a market for justice exists theoretically. I have pointed
out that restitution is not necessarily due to the “direct” victim only, but to
all “secondary” victims, the family, the employer, insurance companies, etc.
This is why, if the victim does not initiate legal action for whatever reason,
the criminal is not so easily let off the hook ; many parties other than the
direct victim are likely to pursue him. Furthermore, many individuals are likely
to submit themselves voluntarily to a code of conduct including the possibility
of punishment, for ethical, religious or other reason, in addition to the
universal obligation of restitution, if they commit an aggression.
Most importantly, I have shown that governments have not
only confiscated the rights of the victim throughout history, but that they
posture as the victim of crimes they have invented. The list is endless of the
so-called crimes against the “national interest” : evading the draft,
crossing borders illegally, “moonlighting”, drug-related crimes, tax evasion.…
Every time a government declares that it (or “society”) is the victim of a
crime, each one of us becomes a potential criminal. Taking justice away from
government is essential to our liberty.
Text
edited and annotated from the transcript of a talk delivered at a conference in
Katowice, Poland, in November 1996
I am most grateful to Dr.
John Hospers, Walter Block and Alain Laurent for their constructive criticism
of this text. Their contribution, of course, does not imply agreement.
www.liberalia.com cmichel@cmichel.com
[1] Penalties
work well as part of a contract, for instance, for late delivery ; or when
street owners use fines to prevent over-parking. Punishment, however, is
ineffective in deterring "crimes of passion", when emotions, hatred,
jealousy.. cloud the offender’s judgment and make him unable to assess the
consequences of his actions.
[2] There are of
course other effects caused by imprisonment. The Rev. Jesse Jackson is quoted
as saying: “Capital punishment turns the state into a murderer. But
imprisonment turns the state into a gay dungeon-master.”
[3] It is clear
that when there are many violent crimes in a neighbourhood, people feel unsafe
and do not leave their house at night. The entire neighbourhood is affected by
the crimes occurring in it, not only the victims. This does not mean that
justice must be rendered "in the name of the Neighbourhood", but only
to compensate these neighbours who had to change their way of life and suffer
the burden of unwanted protective measures.
[4] The reason for pursuing a criminal action notwithstanding the consent of
the injured party is a procedural one. It is alleged that if a legal action
against a criminal could be introduced and withdrawn only at the say so of the
victim, it would be too easy for the suspected criminal, or his acolytes, to
threaten the victim into silence.
This
argument lacks conviction. Witnesses may also be subject to threats if they
testify, yet there are programmes everywhere to protect them. The same programs
could protect the victims. The argument also forgets that the victims may sell
their right to restitution to a party which will make it its business to
collect as much as possible from the offender and will not bow to pressure from
any mafia. In addition, there is usually more than one injured party as a
result of any violent act. For instance, the victim's family members and his
employer may consider they too are wronged by what happened to him. This means
that there are quite a few people to silence. Furthermore, in most cases, the
victim will claim compensation from medical and property insurance companies
with which he is insured, which will lead to these companies initiating legal
action against the criminal to recover their costs : insurance companies are
not easily intimidated.
[5] Crimes are
also allegedly committed against God (it is certainly the case in Islamic
societies) and against nature. Priests and ecologists decide what these crimes
consist of, and then confiscate to their own benefit the penalties and the
publicity attached to the sanction of these so-called "crimes".
[6] The
Hammurabi code and certain Egyptian and Chinese sets of laws may be more
ancient, but they have never had much influence on our legal tradition.
[7] If we agree
that no one may claim a moral law as his property and that all rights are
property rights, we should conclude that no restitution is due - what would it
consist of ? - by the mere fact that a moral law has been
violated without a corresponding violation of a property right.
[8] Vices Are Not Crimes - A Vindication Of
Moral Liberty, 1875. I read this famous essay by the American anarchist
Lysander Spooner in the French translation published by les Editions des Belles
Lettres, 1993.
[9] Insurance companies would think twice before
accepting a policy subscribed to by an individual, for that individual’s
benefit, on the life of one of these children or pensioners. (It would amount
to a bet on someone's life, which might prove too big a temptation for the
beneficiary when a need for cash becomes pressing). Insurers do not, however,
have the same reservations when the policy is for the benefit of an
institution, like a hospital, a church, a school or a museum or a Tenants
Association.
[10] This
characteristic makes French and British labour camps quite unlike those of Nazi
Germany and the USSR, in which minerals were extracted and dams were built, but
under inhuman working conditions. The labour supply in these totalitarian
regimes was abundant, its cost negligible. The thugs who ruled them could
arrest and deport entire populations as they saw fit. There was no incentive,
therefore, to remunerate the inmates, or even feed them properly. Forced
labour, on the contrary, as we use the words herein, simply means the convict's
income is to be assigned to the victim (as happens when a divorcee's income
today is withheld by a court order to pay alimony, for instance). Ideally, of
course, the condemned party would retain the job he had before the trial ;
Internment in a camp would be only for those who would attempt to defy the
judgement (Today, offenders are simply thrown in jail, which certainly defeats
the purpose of collecting restitution payments).
[11] I would like to point out here that neither
a state police nor state courts of justice are necessary. It is outside the
scope of this paper on justice to discuss the functioning of private protection
agencies (private police). One can simply note that, because insurance
companies do not like paying out damages, they would either make it a condition
of their coverage that their clients get reasonable protection, or they would
provide this protection themselves, which either way creates a lucrative market
for private protection agencies, the sole function of which would be to protect
people, not government.
[12] The same potential liability applies to
police agencies, if they have acted with neglect in chasing a criminal, or with
undue violence when arresting him. It would be nice, at last, to have a police
accountable to those it is meant to protect.
[13] It is
interesting to note that prisons are still called today “penitentiaries”.
[14] Whilst such an argument in favour of a justice process based on restitution
rather than punishment might sound rational, it takes little notice of our
deeply embedded ethical norms, where intent
is almost as important as the act itself. Take for instance the burglar who
sees works of art in a flat she has broken into. She may not be able to tell
the difference between cheap copies and originals. The intention to commit a
theft, though, is the same. It is only by accident that she takes away fakes,
which she then has the bad fortune to lose. When caught, she will have to pay
compensation. In a justice system based only on restitution, it will take only
a few months in a labour camp to compensate the owner of the fakes, whilst her
whole life of hard labour would not have been enough to earn the monetary value
of the original paintings. Yet, she is no more of a thief in the second
instance than in the first, so why should we treat her differently ? My answer
to that criticism is that there is no such thing as an aggression without
consequences, and the consequences of violence can never be measured
beforehand. The aggressor therefore has to assume the risks of the action she
wilfully committed. In a way, you could say that the smallest larceny is like
having unprotected sex. Maybe nothing will happen, maybe a minor problem, maybe
a very serious one. Whatever the consequence, he who has initiated the
aggression must face it.
[15] I am
grateful to Alain Laurent for this idea that the market will determine whether
a restitution-based system is too lax or not. Communities which apply the
minimum restitution-based system might end up attracting rather unsavoury
parties. They might end up being ostracised by people who prefer to deal with
members of other groups which apply stricter sanctions to their willing
members.