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Outline
The Existing Monopoly
Thesis
1. Private Punishment
2. State Punishment
3. No Punishment
Conclusion
I believe the founders of a free nation will decide to prohibit punishment when they understand the implications outlined in this article. First, let me explain why punishment of criminals poses a major problem for a free society.
The Existing Monopoly
Libertarians have used economic arguments and historical evidence to show that the free market can deliver education, roads, money, mail, and other useful things more efficiently than the state can. Some libertarians have gone further by asserting that defense, like any other legitimate service, could be provided better by a competitive market than by a state monopoly. This claim, however, is not as radical as you might think. You don't have to be an anarchist to agree with it. For one thing, the state does not, in fact, monopolize all defense services. The state is often involved in the defense business and it closely monitors and regulates private suppliers of defense services, but it is not always the exclusive supplier of defense services. In the United States, for example, citizens are allowed to defend themselves. They can own weapons. They can hire bodyguards, watchmen, and private investigators. They can install burglar alarms, keep their valuables in vaults, purchase insurance policies, and so on. With all this in mind, it is hard to see why anyone would consider defense to be a state monopoly. Libertarians are attacking a straw man when they argue that there need be no monopoly of defense services; there is none!
Why then do so many people regard defense as the raison d'être of the state? If defense means protection from attackers, preservation of property, and repossession of stolen goods, then the claim that private enterprise cannot provide defense is unwarranted, because private enterprise already does provide defense to a significant extent. However, if "defense" means not only protection against attackers and repossession of stolen goods, but also punishment of criminals, then it makes sense to claim that the state is necessary for "defense." The state does maintain a monopoly on the punishment of criminals. Those who "take the law into their own hands" by punishing criminals as they see fit are in turn punished by the state when they are caught. Punishment rather than defense poses a problem for those who want to privatize everything.
Thesis
Let us assume that we belong to a heterogeneous group of libertarians who are starting a free nation and that, even though we all understand English, we do not have a common religion or a common cultural tradition with regard to how criminals should be punished. Assume we have to decide how to treat criminals based only on reason and human nature, disregarding all influences from particular cultures and traditions. Then, we would have three basic options for punishing criminals:
2. Let the state control the administration of punishment.
3. Prohibit punishment.
1. Private Punishment
Private punishment would lead to so much instability in society that the nation would not remain free for very long.
a. Private defense services would
be severely restricted
If the state did not maintain a monopoly on punishment of criminals and if private individuals had the right to administer retribution, it would never be proper for a third party to come to the aid of someone who is being attacked, because it would be impossible to know whether the attack was a crime or a punishment.
If someone is acting on the eye-for-eye principle, there might be no visible difference between a crime and its punishment. The intent of this principle is to make the punishment be as much like the crime as possible, so a mugging would be indistinguishable from eye-for-eye punishment of a mugger. An apparent rape could actually be an act of personal revenge justified by the right to punish rapists.
Third parties could not know whether a person being attacked has ever committed a crime, and they could not know whether the person being attacked deserves to be punished. So, they could not know whether the attack is a crime or a punishment. If it is a punishment, they could not know whether it is excessive. Without knowing these things, third parties could not know whether they have the right to intervene.
In other words, if we regard everyone as innocent until they are proven guilty and if we approve of private punishment, we would have to regard an obvious attacker and his victim as equally innocent, and we would be morally bound to refrain from taking sides.
Watchmen or guards would have to enquire of any trespasser, "Is this an ordinary criminal invasion, or is it a retaliation for a crime?" If the trespasser says he is administering punishment, the guard would have to give him the benefit of the doubt and not intervene. This would have a devastating effect on the ability of private industry to provide defense services. Before you could agree in good conscience to protect a prospective client, you must be sure that the prospective client has a right to be protected. To know this, you have to know that he never committed any crime for which he has not been punished in full. To know this, you would have to know his entire life history. This is such a stringent requirement that it would prohibit crucial functions of the protection industry.
Consequently, the right to private retribution would negate the practical benefits of delegating the right to self-defense. Individuals would only have moral authority to defend themselves. If they tried to defend anybody else, they would risk violating a crime-victim's right to administer punishment. To do so would jeopardize their own right to self-defense. If private punishment were legitimate and you violated someone's right to punish a criminal, you would become a criminal yourself, and you would lose your right to defend yourself from punishers.
The right to punish criminals would leave innocent people to their own devices for self-defense. Individuals could not cooperate for mutual defense. Criminals, being criminals, would not be inhibited by these moral considerations and would be able to cooperate with each other and be partners in crime, but noncriminals could not cooperate in defense against them.
However, the right to punish criminals, unlike the right to self-defense against criminals, could be delegated to others. This means that private firms could legitimately punish criminals for profit as long as they only punish people who have objectively been proven criminals. A victim of a crime who personally witnessed the crime would be sure of his personal right to retaliate against the criminal, but a punishment firm could not be sure it had the right to assist him unless there is enough evidence to objectively prove who committed the crime.
b. Some people would be singled
out for their punishment-entertainment value
Competing punishment businesses would arise, financed by the patrons of retribution. The most profitable of these would be the ones that did the best job of satisfying their customers. If it were allowed, every form of punishment for which there is a demand would be provided by the free market. Punishment would probably become a form of entertainment. Money could be made by charging an admission fee to witness retribution. Punishment parlors and theaters might open up in every city. Competitors could devise imaginative new punishments to attract and titillate audiences. Special prices could be charged to witness "adults only" orgies of punishment on Saturday nights. X-rated punishment shows might become a popular attraction.
It is likely that there would be a particularly high demand to see justice done to pretty girls. One probable consequence would be that pretty criminals would be apprehended more often than other criminals, because there would be more profit in punishing them. It would be in the economic interest of punishment companies or bounty hunters to closely observe the activities of young women, so that as soon as they commit any infraction, they can be scheduled for punishment in the most profitable way.
Pretty girls might be followed and spied upon in hopes of witnessing them commit crimes, capturing them, and selling them to the punishment firm that bids the highest price. Pretty girls would have to be extremely careful and wary of entrapment so they do not become the stars in the Saturday night retribution show.
c. Punishment would be unequal
and unpredictable
Such practices would lead to economically justified inequities in punishment. If punishment were not regulated by strong traditions or religious authorities or a coercive monopoly, it could not be uniform or predictable. If sentencing schedules were not publicized, people could not know in advance what kind of punishment they risk. Criminals would be punished in different ways for the same crime, depending on who did the punishing. Some people would try to enforce the eye-for-an-eye principle. Others might demand two eyes for an eye. Some might argue that imprisonment is better than mutilation, and others might not be satisfied with anything less than the death penalty for all criminals.
To avert unprofitable wars, competing punishment organizations could agree to some general rules. A sensible rule for them to adopt would be to allow the victim of the crime to determine the punishment. Punishment parlors could suggest or demonstrate a variety of popular or fashionable punishments. They might publish illustrated catalogs of imaginative and enticing penalties. The customer would make the final decision and get exactly the justice he pays for. Other punishment organizations, by prior agreement, would honor the chosen punishment as sufficient to negate the particular crime of that particular criminal, regardless of any disparity between this punishment and punishments chosen for other criminals who commit similar crimes. There would be no uniformity of punishment for similar crimes and no general proportionality between punishments and crimes.
d. People would demand a different
system
The inequities of free-market punishment would soon become apparent to everyone. People would demand that the punishment system be changed. Those who feel that some criminals are being punished too severely would seek to restrain the punishers. Prudes who disapprove of X-rated punishments would protest them. People who are upset by the destruction of the protection and insurance industries, would demand a uniform system of punishment that would allow these industries to function again. The arbitrary and unfair nature of punishment would become clear to everyone. This would lead to demands for the abolition of punishment on the one hand and for the adoption of a uniform punishment code on the other. Pressure would mount to ban some punishments and to standardize the whole punishment process.
Because there is no rational basis for choosing one punishment theory over another, the only way to have a uniform punishment system in a heterogeneous society is to impose one by force. People would demand that the state enforce punishment standards and monopolize the whole business. Only a state, an organization that maintains a coercive monopoly on invasion, can enforce its standards of retribution and prevent everyone else from enforcing other standards. Only a state can give the appearance of fairness to an arbitrary penal code by imposing it on everyone.
2. State Punishment
It is not necessary to describe state punishment in detail, because we are very familiar with it already, having lived under such a system all our lives. Theoretically, the state can make punishments uniform by enforcing a written penal code. Then, the state could establish procedural rights and administer punishment in a distinctive way so that punishment could be distinguished from assault and battery, kidnapping, and wrongful imprisonment. This would allow private citizens to know when they can defend one another without obstructing justice.
When the laws are enforced by a state that recognizes procedural rights, people are only punished after they have been found guilty of violating a publicly declared law. The state (ideally) protects people who have not been proven guilty in the courts. A state monopoly of lawmaking and punishing allows people to make plans to avoid punishment.
The uniformity intended, if not actually provided, by the rule of law would help to make the infliction of punishment seem equitable.
By maintaining a monopoly on the administration of punishment, the state makes it possible for defense agencies to function. For example, if a private guard came upon a man mercilessly beating a helpless old lady, the guard would know right away that the attack was not a legitimate punishment. He would know that only the state can legitimately punish criminals and that they can only do so after a formal trial with a lot of pomp and ceremony. So, the private guard can provide more protection against invasion when the state monopolizes punishment than he can in a society that permits unregulated, private punishment. For this reason, the statist's solution to the punishment problem is more practical than any system of free-market punishment.
3. No Punishment
In a voluntary society where crime is defined as the initiation of force and where the only legitimate use of force is to stop crime, anyone who tried to impose physical punishment by force would be recognized as a criminal, and everyone would have the right to use force to stop him.
When we regard punishment as unlawful, then we are no longer terrified by the idea of allowing people to take the law into their own hands. If we reduce law to simple justice, as defined by the right to self-defense against aggression and the right to do anything peaceful with one's legitimate property, then it becomes legitimate for people to take the law into their own hands.
Vindictive practices would be restricted in a voluntary society, but if we defined "punishment" broadly, not all "punishments" would be outlawed. The kind of punishment that justice prohibits is the kind that involves physical harm to someone's body or other property without their consent. Corporeal punishment, imprisonment, and fines are prohibited by the basic right to self-defense against aggression. However, there are other vindictive things that you would be able to do to people legitimately. With a little ingenuity and determination, you can get some satisfaction without violating anyone's rights. For example, you could make those who offend you feel ashamed by publicizing their crimes. Or you could organize a boycott or try to persuade others to isolate a criminal from society. If you really wanted to be mean, you could lure someone into a trap, get him to commit a crime, and then jump in with superior force to stop him. The force you use must be for defense, but you might enjoy it while it lasts — you might get lucky and leave a scar or other permanent damage.
Crime would be kept in check without punishment in a society based on the right to self-defense, because, first of all, each person could defend himself. Second, people could voluntarily help defend each other. Third, people could hire professionals to defend them.
Protection agencies would have a legitimate place in such a society. They would not have to know the past history of their clients in order to know that their clients have a right to be protected from all invaders. They would only need to stipulate that they will protect each of their clients except while the client is breaking the peace. The protection agencies would not have to know whether their clients have ever committed crimes for which they have not been punished. The protection agencies would only have to be concerned with their client's actions now.
This would allow professional defenders to take immediate actions on behalf of their clients. This is important because now is when the client wants protection from threats. Now is when all the pertinent facts are evident and can be evaluated. Now is the best time to make moral judgments, not later in a courtroom after the crisis is over and circumstances have changed, when the evidence is old and might not matter anymore.
The law administered by all firms in a free society would be the same. What would vary from one firm to another would be such things as their profits and losses, the quality of the services they provide, the prices they charge, and the technologies they use.
They would differ from states in that they would not be monopolies, and they would use the economic means instead of the political means. Consequently, they could not impose taxes, they could not suppress competition, they could not punish anybody, they would not have subpoena power, and they could not empanel juries by force.
In a free society, no one could be dragged into a courtroom to testify, to judge the facts, or to stand trial against his will. Any courts in a free society would be set up solely for the convenience of disputing parties who mutually agree to arbitration. No one would be obligated to use such courts.
Protection agencies might be hired by individuals or by insurance firms acting on behalf of their clients. Insurance companies would have a vested interest in returning stolen property to its rightful owners if they are obligated by contract to pay compensation for stolen goods not returned. Insurance firms might hire detectives to retrieve stolen goods. They might hire guards and watchmen to prevent crime. They might finance the development of new methods to prevent or stop crime. They could hire scientists to invent methods for identifying insured property and even finding it when it is lost or stolen. Perhaps a device could be invented that could distinguish any particular registered piece of property from all others and make it easier to track it down.
If possible, the insurance companies should return the same physical item that was stolen. If this is not possible, or if the property can only be returned in a damaged condition, then the insurance policy should spell out the method for determining compensation.
Those insurance firms that gain a reputation for providing good protection, fair settlements, and reasonable prices will do the most business. Thus, in a free nation that recognized the right to self-defense and that outlawed punishment, the free market could provide a great deal of protection from crime.
Conclusion
From a practical point of view, it would be better to forbid all punishment than to allow it to be administered privately, because allowing private punishment would ruin the protection industry and lead to chaos. Allowing the state to have a monopoly on punishment solves some problems, but it can lead to other undesirable state activities such as taxation, repression, and warfare.
From a moral point of view, libertarians should work to discredit retribution by pointing out that (1) it violates the right to self-defense against aggression, (2) it is not within human abilities to objectively administer proportional punishment, and (3) there is no nonarbitrary way to decide what the proportion between punishment and crime ought to be.
Administering proportional punishment requires omniscience. Those who believe in it must be content to hope that there is a god who also believes in it and who will administer it in the afterlife. In this world, punishment should be regarded as a criminal activity like censorship, taxation, war, and other uniquely state functions that have no place in a free nation. D
Roy Halliday is a longtime libertarian
who works as a technical editor for a major software development company
in Research Triangle Park, NC.
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