This article was published in the Winter 1996-97 issue of Formulations
by the Free Nation Foundation
The Market for Punishment
by Richard O. Hammer and Roy Halliday

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Rich Hammer: Roy Halliday, in his article "The Anticrime Industry in a Free Nation" (Formulations, Vol. IV, No.1, Autumn 1996), sometimes reasons in ways that I cannot follow. Here I will describe a few of these issues and invite Roy to respond.

Roy develops an argument (in section 1.a.) that "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."

This argument, as I understand it, stands upon the possibility that someone carrying out punishment might be acting upon the eye-for-eye principle, such as giving a mugging to punish for a mugging. But this argument seems farfetched. Any sensible third party administering a punishment would foresee this possible confusion, and would take steps to avoid it.

In contrast (in section 2) Roy says that the state, unlike private agencies, could administer punishment without fear of confusing any third parties who might come to the aid of the party being punished. This, he says, is because the state would administer punishment "with a lot of pomp and ceremony." But I believe private punishment agencies would also employ pomp and ceremony, as much as they deemed necessary to protect themselves from this hazard Roy has described.

In making this argument Roy overlooks another reality, I think. Usually we can recognize aggression, by noticing the nature of the act and the status of the two parties involved. This recognition is not perfect, but most of us who have compunctions judge with care. The judgements which result can, and commonly do, support order in a community.

So the possibility that a protection agency might confuse aggressor and victim does not support, in my mind, Roy's argument that private punishment could not work any more than the possibility of having an accident stops most of us from driving in our automobiles.

Now I go on to another point. In section 1.b., Roy describes the possible development of a "punishment-entertainment" industry, which would profit by selling admission to watch punishments. He speculates that punishment of pretty girls, in particular, could pay so well that profiteers would spy on pretty girls, looking for any cause to bring them to judgement.

This strikes me as wrong, in a moral sense, and therefore I doubt that voluntary society would sustain such behavior. When such behavior becomes regular in a society I believe that usually we can trace incentives and show it to be the effect of something done by government.

In this case it seems Roy imagines that a business hired to punish a person in one way could, with impunity, hurt that person, or that person's pride or reputation, in other ways. It may be reasonable for Roy to imagine this, because he lives in a country in which the government system of punishment submits inmates to extra indignities.

But many people care about inmates. And these people would, if they could, protect inmates from extra indignities. But government, having given itself a monopoly in law, cripples these people.

In a free nation, I believe market forces would protect the one being punished. Punishment agencies which overstepped their duties could, in turn, be charged with crime.

Finally, please do not assume, because I question Roy's method in a few places, that I take the opposite view: that I favor punishment, either private or public. I have described, but not clearly enough, some of my own formulations about the nature of voluntary law enforcement, in articles here in Formulations.

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Roy Halliday: Rich Hammer makes a good point when he says that any sensible third party administering a punishment would take steps to avoid the possibility that the punishment could be mistaken for an ordinary crime. I would expect professional punishers to be dispassionate and deliberate and cautious. Anyone who witnesses an apparent mugging could safely assume that it is not a punishment being administered by a professional punisher, because professionals would not administer punishment that way. But what about victims of crime and their families who are seeking vengeance? What is to stop them from taking direct action, without hiring professionals and without waiting for a trial? How would a third party know that an apparent mugger is not, for example, a former victim of the person being attacked or the big brother of the former victim? It may seem farfetched, but that is because what I am trying to imagine is a farfetched society in which each individual has the right to administer punishment as he sees fit.

Rich makes another good point when he says that "usually we can recognize aggression, by noticing the nature of the act and the status of the two parties involved." An aggressor, let's call him A, is someone who uses force against the person or property of another person, call him B, without B's consent for reasons other than to defend against B's own use of force. We can often recognize when this sort of thing is happening. The problem is that punishment fits this definition. The kind of punishment that I am referring to is when a private individual or the government uses force against a criminal without his consent after the crime is over. So our ability to distinguish aggression from nonaggression does not help us to distinguish punishment from crime, because punishment and crime are both forms of aggression. In fact, under the eye-for-an-eye principle, there is no visible difference between a crime and its punishment.

The scenario that I described, in which pretty girls are punished as a form of entertainment, does not presuppose that "a business hired to punish a person in one way could, with impunity, hurt that person, or that person's pride or reputation, in other ways." In my scenario, the victim of the crime gets exactly the form of justice that he pays for. What I suggest would happen is that punishment businesses would encourage victims to select forms of justice that make the most profit. Punishment businesses might be able to persuade their clients to select entertaining forms of justice by offering them discounts or even by offering to let them share in the profits. If the victim of a pretty criminal was not sadistic, he could forgive her, and that would be the end of it. But if he wanted to hurt and humiliate her, there would be money to be made by doing so and selling tickets to witness justice in action.

Rich says it strikes him as morally wrong to punish pretty girls as a form of entertainment, and that, therefore, he doubts that a voluntary society would sustain such behavior. Here again, Rich makes my point. In my article, I predicted that many people would be morally repelled by the consequences of free-market punishment and they would clamor for a change to eliminate its most obvious inequities. D

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