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" anarchists, cannot come up with a convincing answer to - precisely - this question of justice, i.e. : How do you give each one his own ? A rather central issue for life in society, I should say.
Libertarians do have an answer to that question, and it is called property rights. Defining and enforcing property rights is the way to tell 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 we have a cause for seeking justice. Libertarians are treating 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 the provision of justice is one of two reasons for keeping a minimal state (the other being relationships with other states, through diplomacy and defence). It seems that fromthe left to the right of the political spectrum, there is a strong consensus that justice cannot be rendered substantially differently than it is today, 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 movements in the form of a prison term, or both. Quite a few 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. First, the violence against the author of a crime does not negate the original violence perpetrated against the victim, it simply adds onto the total amount of violence in the world. Second, the exemplarity of punishment remains to be demonstrated. Throughout history, the most horrific tortures, publicly inflicted to delinquents, never acted as much of a deterrent, or our fathers would have enjoyed the benefits of a crime-free world. Third, this cycle of violence does not seem to benefit anyone. It has no redeemable value to the criminal; indeed, it is generally accepted that punishment, and especially imprisonment, is a school 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 keeping up detention centres, when between 80% and 90% of the inmates are men).
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. Justice is not rendered to the victim, justice today is a matter between an alleged criminal and society. The victim's absence is conspicuous, especially under Roman law procedures. The trial is conducted by a prosecutor who is not representing the victim, but acts on behalf of "society". Even when the victim withdraws her complaint, the proceedings against the trespasser or aggressor will continue.(note 1) For the purpose of a criminal action is to convict and punish a criminal, it is not to obtain a just compensation to the victim. She may or may not be insured and collect damages from her insurance company, this matter is independent of the court case. The fate of the victim is not what judges are concerned about.
In other words, statist organisations have confiscated the rights of the victim. They are surreptitiously alleging that all crimes are not so much committed against a person as against "society". 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, a crime is opening your shop on a Sunday, and for another, on Saturdays; bigamy is an offence here, but quite accepted in the Arab world; hundreds of millions of people live under governments who would have anyone caught drinking wine sentenced to a public whipping, but who are happy to let you smoke pot, and just as many people live under governments who 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 would 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 one is not.
Yet, our most ancient definition of justice (note 2) is phrased precisely to protect us from the arbitrary 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 improvement. 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 Bic pen.
The express implication of "an eye for an eye..." is that it teaches us 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 how come it is declared illegal (note 3) ? There is a fundamental difference between a vice and a crime. Vices are not crimes. (note 4) Thus, all of you who would like to smoke something more flavoured than Marlboros, or read something more spicy than Playboy, you may invoke Exodus XXI, 23.
The great libertarian philosopher and economist Murray Rothbard is one of the few modern authors who would like us to apply literally this biblical precept of "an eye for an eye". In a rather surrealistic chapter of The Ethics of Liberty, he tells us of executioners beating, or stabbing, or breaking some bones, of a convicted aggressor, exactly as he did 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 same 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 to another individual. For instance, if you go strictly 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 crimes and punishments. 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 created again arbitrarily. The same blasphemy in Christendom, which would have cost you dearly a few centuries ago, will hardly be frowned upon today. A rape would have hardly sent any male in prison before the feminist movement a few decades ago made legislators and judges aware of its devastating consequences. Over time, the seriousness of an offence is a concept that has varied widely. Legislators and judges have not been able yet to find a punishment that fits the crime objectively.
So, let's recapitulate what we have achieved at this stage. We have examined what I believe are the two distinctive features of a statist system of justice. On the one hand, society exerts retaliatory violence against the convicted offenders in the form of a fine, or 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. On the other hand, the victim is not part of the judicial process. It is as if "society" nationalises the pain and damages caused to victims. This is the 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 the victim 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.
I guess from now on, 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, quoted as "rendering each person 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 effected, justice would have been rendered and no punishment would be justifiable. So, is the next best solution, therefore, 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 vision of the blinded victim's eye 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. It may satisfy deep psychological impulses for violence and vengeance, which it ought to be the purpose of civilisation to eradicate, but which people who lust for political power will be only too keen to manipulate. This is why this question of justice is central to a free society.
The 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 - 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".
If we accept that there is no crime unless a victim has reported it, and no other judicial action than to seek restitution 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 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 costs of replacement and for any other collateral damages, like a new carpet if rain has spoilt the existing one. If a car has been stolen, the convicted thief will be held to give the car back, of course, and to pay for rather easily assessable damages, like the costs of policemen who had to be called upon to locate him and the car, like the unauthorised mileage, fuel consumption, wear and tear, the rental of a replacement car for the owner, etc. The problem of restitution seems more complex, indeed insurmountable, when it comes to situations like that of murder. What restitution is possible in this case ? 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 a 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, vacation..., 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 is actually handing out one less pension. Who will bother to go through the trouble of filing a legal action, and who is actually entitled to claim any restitution for this loss of life ? The paradox under 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 short the resourcefulness of the market. Government today makes solidarity between human beings compulsory, but it exists naturally. It exists generally 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 between people. If we privatise justice, we give back to the people the possibility to re-create between themselves the network that exists in any society, except in our social-democratic and socialist models.
The state today forcibly limits market solutions in the field of justice. If I knew what these market solutions could be, i.e., if I knew what people can invent when they are allowed to do so, I would be a very rich man indeed. 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 was mentioning 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 it is the case here. Even in these extreme circumstances, the good old self-interest will get protection to even the most misanthropic character. How does self-interest work in situations like the old pensioner's ? I maintain 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 would 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 sales argument 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 by everyone, including by cost-conscious third parties, like landlords, like neighbours, and, even more, of course, by rich philanthropists, who, no longer having any tax whatsoever to pay, would deem it their moral duty to insure the poorer lot in society. It can be expected 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.(note 5)
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 pages 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. (note 6) 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 she no longer has a claim against the criminal, that she considers herself fully compensated, the criminal is automatically released from all obligations. Why should anyone who is not the victim have any say in the matter ? There is no such thing as a legitimate condemnation by "society", i.e., by people who have not suffered the aggression. (As a consequence, by the way, there is no revenge 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. (note 7)
When the only conflicts in society concern private property rights, with none of the imaginary crimes politicians invent, the cases brought to courts are much 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, will 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 promptly lose their business if their verdicts were too often contested. When the "justice agency" renders a verdict of restitution, it will be after ensuring that the victim who receives the restitution is really the victim, that the criminal who pays it is really the criminal, that the amount set for restitution is fair. It is not only the justice and police agencies' reputation which is at stake, but their financial well being as well. The best guarantee the parties to a court action will have that the proceedings are 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 her verdicts. Unlike what happens in a statist system, she cannot expect to render a verdict and, if proven wrong, remain untouchable. Her 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 ought to become liable for compensating the innocent for the financial loss and for the tarnished reputation, and, conversely, the victim (and/or his insurer) could seek compensation from a judge who would have acquitted the author of a crime, thereby depriving the victim and the insurer of due restitution. (note 8)
And because the ultimate client of private judges is the insurance company in most instances, the poor gets as good a treatment as the rich - as indeed happens today : the insurance company of a Rolls Royce driver does not automatically win over the insurance company of a 2CV driver, even when they settle out of state courts.
One wonders why justice ever got concerned with the notion of guilt (probably a ghost from the time when all justice was rendered in the name of God). Guilt belongs to the realm of morality. We may cast moral judgements, and, actually, 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. (note 9) 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 a merchandise. It is only one way, however, of looking at the matter. Exactly like marriage is not only a contract defining the mutual obligations of the spouses and the division of their assets, there is a lot more taking place in any judicial process, libertarian or not - a whole range of emotions, thirst for revenge, hate, fear, guilt, compassion, which of course cannot find any equivalent in monetary terms, but are these emotions what we want to promote ? As we said earlier, there is no punishment which naturally fits the crime; punishment is always arbitrary. Restitution, as least, establishes a direct link between the offence and the action taken against the offender.
Granted that verdicts are always arbitrary, at least can one not say that all criminals in the present statist system are equal when serving their sentence ? Well again, not really. Two individuals may be affected variously by the same prison terms and 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, paying 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 scamp. Millionaires, however, generally do not feel the urge to steal cars. This is because, if they reached their financial position, they have other values, and social integration is important to them. Restitution may not bankrupt them, but it is conceivable 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 affect that much the uncouth slob.
In the limited format of this paper, I attempted to show that, when no measure can recreate exactly the status quo ante, restitution is less arbitrary than punishment when dealing with criminals. Restitution can be assessed in monetary terms or in any other terms, satisfactory to the judge and the victim, like hours of work 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, lowers the total amount of violence existing in society. This is because such a system disregards all victimless crimes, thus drastically reduces police intervention from today's level. It is 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 and don't need state courts for that.
I believe I have also sketched a few reasons why even the poor in society would not be denied access to private justice. There is no need for a benevolent state to ensure the service of justice to all. The market is a lot more creative than I am, and no doubt more efficient solutions than the ones I mentioned will be found. My purpose here was only to demonstrate that a market for justice exists theoretically. I pointed out that restitution is not necessarily due to the victim only, but to all related parties, the family, employer, insurance company, etc. This is why, if the victim does not initiate legal action for whatever reason, the criminal is not so easily off the hook; many others than the direct victim are likely to go after him.
More importantly, governments have not only confiscated the rights of the victim throughout history, but they are posturing as the victim of crimes they have invented : crimes against the "national interest", evading the draft, crossing borders illegally, "moonlighting", drug-related offences, tax evasion..., the list is endless. Every time a government may declare that it is (or "society" is) the victim of a crime, each one of us becomes a potential criminal. Taking justice away from the government is essential to our liberty.
FOOTNOTES:
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 by the sole decision of the victim, it would be too easy for the suspected criminal, or his acolytes, to threaten the victim into silence.
The latter argument lacks conviction. Witnesses also may be subject to threats if they dare testify, and there are everywhere programs to protect them. The same programs would protect the victims. The argument also forgets the victims may sell their right to restitution to a party who will make it their business to collect as much as possible from the offenders and will bow to pressure from any mafia. In addition, there are usually more than one damaged party of any violent act. For instance, the victim's family members and her employer may consider they too are wronged by what happened to her. It means quite a few people to silence. Furthermore, in most cases, the victim will claim compensation from her medical and property insurance companies, which will trigger these companies to initiate legal action against the criminal to recover their costs, and these insurance companies are not easily intimidated. (Back to text).
The Hammurabi code and other Egyptian and Chinese set of laws may be more ancient, but they never bore much influence on our legal tradition. (Back to text).
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 a moral law has been violated without a corresponding violation of a property right. (Back to text).
Vices Are Not Crimes - A Vindication Of Moral Liberty, 1875. I read this remarkable essay by the American anarchist Lysander Spooner in the French translation published by les Editions des Belles Lettres, 1993. (Back to text).
The insurance people would think twice before accepting a policy subscribed to by an individual, to his benefit, on the life of one of these children or pensioners (it would amount to a bet on someone's life, which might prove to be too big a temptation for the beneficiary when cash needs become pressing), but insurers do not have the same reservations when the policy is to the benefit of an institution, like a hospital, a church, a school or a museum or a Tenants Association. (Back to text).
This characteristic makes French and British labour camps quite unlike those of Nazi Germany and the USSR, where arms and minerals were indeed produced, 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 revenues are to be assigned to the victim (as happens when divorcee's revenues today are withheld by an order of the court to pay alimony, for instance). Ideally, of course, the condemned parties would retain the job they 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 ever collecting restitution payments). (Back to text).
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 hate 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 the people, not protect the government. (Back to text).
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. (Back to text).
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. For instance, this burglar sees works of art and jewellery 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, and assuming she is a third time offender and no longer insured, she will spend only a few months in a camp to repay the legitimate owner, whilst her whole life of hard labour would not have been enough to earn the monetary value of the real thing. Yet, she is no more of a thief in the second instance than in the first.
My answer to that critic is that there is no such thing as a crime without consequences. Committing the smallest larceny is like having unprotected sex. Maybe nothing will happen, maybe a minor problem, maybe a very serious one. Whatever the consequence, the decision to act was yours in the first place. (Back to text).