This article was published in the Spring 1994 issue of Formulations
by the Free Nation Foundation
Restitutive Justice and the Costs of Restraint
by Richard Hammer and Roderick Long

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Richard Hammer: Roderick Long has got me thinking with his article "Punishment vs. Restitution: A Formulation" (last issue). I like the position he takes, that coercion is justified for defense but not for retaliation. It has a kind face. And perhaps it is plausible. But it differs from the values I have assimilated growing up in America. So I need to wrestle with its implications.

I imagine that a framework such as Roderick suggests might work if implemented completely, or almost completely. In such a society citizens could feel confidence in their mechanisms of defensive coercion, and would not fear that a criminal who represented a continuing threat would roam free. Citizens could comfortably discard their impulses to retaliatory coercion, because effective defensive coercion would be no further than a phone call away.

But (I am trying to justify all the times I have cheered in movies when good guys blew away bad guys) suppose I find myself living in a society with malfunctioning mechanisms of defensive coercion. In such a society criminals, if not punished in the moment when retaliation might be possible, may return to inflict harm on another day. Then is retaliatory coercion justified?

Also, I wonder about the economics of all this. For starters, I think an effective system of law enforcement should pay for itself. People naturally want to economize, so a system may fail if desirable behaviors cost more than undesirable behaviors. Suppose a citizen has to choose between restraining a threat, for the cost of $100/day, or shooting a threat, for a one-time cost of $1. These incentives alone do not encourage the behavior we might desire.

Also, we have to expect that criminals perform their own sorts of cost-benefit studies. No doubt they balance the prospect of success with the cost and probability of getting caught. Ideally, if defensive coercion worked perfectly, then no criminal would ever succeed, and criminals would stop trying because their attempts would be wasting their efforts. But, because of the law of diminishing returns, this ideal state may never be reached. A 100% perfect defense may cost ten times as much as a 99% perfect defense. So we can expect some buyers of protection to balk at buying the last 1%, and the free-market equilibrium may be a state in which some crime always pays.

If there is a science of economic calculation of crime control, I expect that this science could show how a system of private law could work. And I expect this science could also show that most familiar failures in crime control are tragedy-of-the-commons failures; government acts invariably create, or codify, public spaces in which certain acts of cheating will be rewarded.

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Roderick Long: Rich Hammer raises the following questions about my article: if defensive coercion is justified but retaliatory coercion is not, what happens when a) defensive coercion is much more expensive than retaliatory coercion, or b) a given society's mechanisms of defensive coercion are simply not functioning very well? Under such circumstances, are people still morally required to refrain from retaliatory coercion? And whatever morality may require, isn't it simply realistic to suppose that under such circumstances any private legal system is going to engage in retaliatory coercion as a matter of economic necessity?

These are good questions. Let me deal with the moral issue first. My brief answer here is that whether a given coercive response counts as defensive or as retaliatory may depend on precisely such circumstances as those that Rich mentions.

In my article I defined retaliatory coercion as coercion that exceeds the extent necessary to defend against an aggressor. Suppose I attack you. If there are no police, or if the police are unable or unwilling to defend you, then a coercive action on your part (e.g., killing me) that would ordinarily not be necessary has become necessary and thus what would have been retaliatory coercion is now merely defensive. Similar remarks apply to the issue of expense: if you have to spend an unreasonable amount of money to restrain me from attacking you, then I am in effect depriving you of your money through my aggressive coercion, and if the cost to you is great enough then you may become justified in killing me in order to defend your property. (The cut-off point is the point at which the cost to you is so great that a defensive killing ceases to be morally disproportionate to the aggression.)

But if some alternative, low-cost means of restraint were available, then you would not be justified in killing me for then such a killing would no longer be necessary for defensive purposes. And this is where the economic issue comes in also. Under a private legal system, there would presumably be prisoner's-rights advocacy groups, just as there are today. Organizations opposing the death penalty, such as Amnesty International, the Libertarian Party, or the ACLU, could raise money to fund prisons; this would free private protection agencies of the costs of restraint, thus removing both the incentive to kill and any plausible legitimacy to killing. (And frankly, I'd rather live in a prison run by Amnesty International than one run by a for-profit protection agency!) D
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