One Anarchist’s Compressed Take On Justice

November 9th, 2011   Submitted by Wendy McElroy

I have a fundamental objection to the prison system that I rarely hear raised. Why does a man who steals a loaf of bread lose his freedom of speech? Why does a woman who vandalizes a car lose the freedom to associate with her children? These questions are a challenge to those who view rights as social constructs as well as those who believe they are inalienable. Stated in more general terms, how is it that aggressors lose virtually all freedom because of what might be a minor transgression?

The facile answer is, “because they are in prison.” Anyone who is incarcerated forfeits most of his rights to the state even if his offense was minor. In essence, a petty thief loses as many rights as a murderer. The longevity of the loss and the comfort of the circumstances may differ, but neither convict retains basic human rights like the freedom of association.

More than the state is at work here; the prison system is an expression of a specific form of justice that is based on retribution and punishment. In turn, these are usually based on the human desire for revenge and the belief that punishment deters crime. But given how angry and crime-ridden our society has become under this system, it is worthwhile to reconsider the wisdom — if not the morality — of having one in every thirty-one American adults imprisoned or on parole or probation (The Economist, July 22, 2010).

With two changes in the legal system, prisons could be eliminated or hugely reduced while still providing justice to victims. The first is to void all laws that do not involve harm done to individuals or their property. The second is to apply restitution not merely to civil infractions but also to criminal offenses.

Restitution is the system in which a person “makes good” on a harm or wrong done to another individual and does so directly rather than paying a “debt” to the state. If a man steals $100, he must return $100 to the victim along with reasonable damages. Thus, restitution eliminates the need for an aggressor to be processed by any type of law enforcement beyond what is necessary to procure repayment and damages. A thief need not be caged; all he needs to do is pay up.

The Proportional Use Of Force In Justice

Libertarians advocate proportionality in the use of violence to protect rights and to procure justice; violence must be a proportional response at all stages of aggression.

Even when aggression is occurring, a store clerk is not allowed to beat a mere shoplifter senseless, nor can a property owner execute a trespassing child. At least two factors control the level of force that is justified in response to direct and active aggression. First, the force should not greatly exceed what is reasonably necessary to halt the act. Second, the force should be roughly equivalent to or less than the severity of the aggression. Thus, extreme violence may be appropriate to prevent a rape but not to prevent vandalism.

Anyone who commits a crime should forfeit the rights he has stripped away from another person until restitution is provided; after all, through his actions, an aggressor indicates that he approves of violating a specific right and, so, provides implied consent for it being taken from him. Thus, the thief who steals $100 has no right to his own money until his victim receives full payment and reasonable restitution. (The standard of “reasonable” restitution is debatable, with some legal theorists placing it very low, and others placing it high enough to act as a punishment and deterrent itself.)

When the offense is against property, restitution to the victimized owner is relatively straightforward. When the offense is against one’s physical person — that is, when it involves bodily harm — restitution becomes far trickier. In many cases, the victim cannot be “made whole.” It should be noted, however, that such crimes are a problem for any legal system, and no system can make all victims whole. This is not a failing of restitution but an inherent dilemma posed by particularly vicious offenses. What needs to be demonstrated, however, is that restitution offers more and better justice than other, competing systems.

The Role Of Courts Under Anarchy

Once a violation of rights has occurred, the emphasis must be on restitution, and here is where a court system becomes useful. In a free market, courts would perform several functions.

They would provide a public forum in which rights violations could be adjudicated in a disinterested manner and restitution could be enforced. A public forum is desirable for several reasons, including the transparency that prevents corruption. It also avoids the possibility of a continuing cycle of violence by well-intentioned third parties. Consider the stolen $100. If a victim attempts to retrieve the money on his own, then he himself could easily be mistaken for a thief and forcibly restrained by strangers. By appealing to a recognized and disinterested agency, the problem of public misperception is avoided.

Introducing courts also addresses the problem of proportionality. A victim may sincerely believe the pain and suffering from a broken leg to be worth a thousand times his medical bills and other attendant expenses. Victims often lack perspective — and understandably so! The solution is to find a middle ground between whatever restitution the victim considers fair and what a court deems to be proportional.

Finding the balance where fairness lives will require some subjective judgment. For example, if a woman or man is raped by a partner who was confused about the presence of consent because they were both drunk, then the proportional punishment might be far less than in a case where the rape victim was severely beaten. Moreover, as Randy Barnett once mentioned to me in conversation, the impact of a rape on a specific person could well be part of the “damages” assessed. For example, if a nun suffered a severe nervous breakdown because of a rape, then the damages might include years of psychiatric care. The extent of the impact — and, so, of restitution — is a risk the rapist takes when he decides to violate another human being. And, of course, the more extensive the restitution becomes, the more likely the aggressor’s rights will be stripped away to ensure “repayment.”


This article raises more questions than it answers. What about murder and capital punishment? Are rights inalienable? Does restitution go against the human desire for vengeance and, therefore, against human nature itself? How would private court systems or law-enforcement agencies function? Is a free-market prison system a contradiction in terms? These are the kinds of issues that fill volumes, but I’ll try to touch on them all in upcoming articles for the Daily Anarchist.

42 Responses to “One Anarchist’s Compressed Take On Justice”

  1. Seth KingNo Gravatar says:

    I squirm a little bit when libertarians try to define what the “proper” amount of restitution is for a given crime. Is the punishment too light or has it gone overboard? Has a property owner overreacted in his attempt to defend his property? These are issues that have no concrete answer. That is why the contract between and among individuals, or indirectly between contracted insurance agencies/courts, is so important.

    If two or more individuals have no contract with one another, or likewise between the two or more defending agencies, then I posit that the individuals are in effect in a state of war, either hot or cold. Any violation of property rights of another can legitimately be met with the ultimate penalty.

    The deterrent to violent conflict must, then, be a pre-approved agreement or contract. Without it all is fair game.

    Libertarians often like to beat to death the idea of rights and morality and it hasn’t seemed to get us very far. I am becoming more convinced over time that what is “right” is irrelevant. At the end of the day peace, and subsequently freedom and prosperity, are solely determined by humanity’s ability to discover and implement new and improved ways for us to get along with one another.

    • HReardenNo Gravatar says:

      So if you think what is right is irrelevent then does that mean that you think it is irrelevent if a man is sent prison for not paying taxes? Pre-approved agreement or contract a deterrent to violent conflict? How? There are violent conflicts that happen rather spontaneously between strangers every day. I don’t believe that prisons can be eliminated unless every crime were punishable by execution and the sentence carried out immediately after conviction. One reason why is because there is a very small pecentage of the population (lass tan 2% ) who are psychopaths. Amoung those who are there is a certain percentage of them who are psychpathic to such an extreme degree that they have absolutely no regard for others.


      • Seth KingNo Gravatar says:

        People have been getting sent to prison for ridiculous things for thousands of years. We haven’t moralized the state out of existence yet. If we want to end these abuses we’re probably going to have to come up with another tactic.

        You ask how a pre-approved contract could end violence. Here’s an example:

        Notice that without the ability to peacefully arbitrate a solution, violence may become inevitable, even if the violence is one-sided, as it currently so often is between the state and the individual.

      • JohnNo Gravatar says:

        Hank, a free society cannot be centrally planned. Whether or not some individuals might build buildings in which to lock those them deem to be ‘bad’ in the absence of a centralized state cannot be predicted; all which can be know is that if those individuals stole money from me without contract or consent to build such a detention facility it would be called nothing other than theft.

        I have no say in what ‘society’ does with criminals, because ‘society’ doesn’t do anything with criminals, ‘society’ is merely a collective construct; it is people who respond to criminal acts. I am a person and must decide how I plan to deal with acts of aggression against my person of property, what I do know is that I don’t plan to force my decision upon anyone else.

    • gdpNo Gravatar says:

      @Seth King — As Wendy notes with regard to violent crimes, determining the “proper amount of restitution” is a fundamental problem in any adjudication system. At least under a restitution-based system, there is an objective minimum standard: The Victim must at a minimum be restored as nearly as possible to their state before the act of aggression occurred.

      By contrast, in the current “Retribution-based System,” the aggressor “owes” the State an arbitrarily-assigned amount of time spent under confinement at taxpayer expense, and the true Victim gets squat. I do not see any way in which this “Pre-Approved Social Contract” is superior to a Restitution-based system.

      So the existence of the current “Pre-Approved Contract” is hardly a guarantee of any reduction in violence. In fact, all the current “Pre-Approved Contract” does is make the empty assertion that de jure, the Agents of the State hold Max Weber’s “Monopoly on Violence” — while de facto nothing less that a Totalitarian Police State would be capable of enforcing such a “Monopoly on Violence.”

      Whether Rothbard’s concept of restitution-based “free-market justice” would be better than the current system remains to be seen, since it’s never been tried. But Rothbard’s system could hardly be worse than the current retribution-based “Pre-Approved Contract,” which fails to prevent violence between individuals, fails to provide restitution to individuals, and drives a never-ending increase in “authorized” acts of violence by Agents of State against individuals.

      • Seth KingNo Gravatar says:

        The debate over retribution/restitution is moot. If two or more individuals cannot agree to solve their disputes in a peaceful manner then by deduction the result must be violence, even if one sided.

        If two or more individuals are voluntary members of an insurance or defense agency that engages in retribution among its members then it is not my position to stop them.

  2. John KindleyNo Gravatar says:

    I’ve recently been thinking that anarchic justice should depend on “consensus” rather than “consent,” manifested in a common-law, customary-law kind of system. As John Hasnas has argued, such a system properly understood is free market law. Law is rarely based on consent. The thief caught shoplifting or committing more serious crimes presumably will only rarely “consent” to the consequences imposed by society. It should take a consensus of society to impose any restriction on liberty. Punishments, whether of the restitution or retribution / deterrence / incapacity variety (and I think the limitations of a restitution-only paradigm are seen in the hypothetical murder of a homeless man with no family or friends to whom restitution for his “wrongful death” might be paid), should likewise be no harsher than a consensus of society approves. Consensus is the social embodiment of the Presumption of Innocence, which is fundamental to a free society. Consensus is only practical in small groups, which points the way to a society of Thomas Jefferson’s “ward republics” and to confederation along the lines of the Great Law of Peace of the Iroquois Confederacy, which operated by consensus.

    • Mike ReidNo Gravatar says:

      I love the anarchist-justice discussion! I think this is where the rubber hits the road in terms of the difference between true anarchism and mere minarchism. Methods of justice form the great chasm between a statist and a stateless society.

      John, you bring up a really interesting point re: justice and smaller societies. I think there’s a third alternative for justice in smaller communities, and that is to focus, not on retribution nor on restitution, but on RECONCILIATION — that is, restoration of the proper, peaceful relationships between the criminal, the victim, and their respective communities.

      Some ex-child soldiers in Uganda are seeking this kind of justice. And there is a great video about it right now on Al Jazeera: 4670219.html

      Is this kind of approach compatible with private-property anarchism?

  3. I am reposting a comment on this article from another forum on which it is being discussed because the comment contains a valuable and intriguing link. The commentator is Per Bylund, a friend and fine scholar. Per writes, “Wendy, did you ever read Dick Fuerle’s On the Steppes of Central Asia? (Written under the pseudonym Matt Stone.) It has an interesting take on what might emerge in the market… I’ve posted it at

    I will drop by several times later today as time permits to give posters the considered responses they deserve.

  4. Kelly JamesNo Gravatar says:

    The concept of justice means that if a crime is committed against someone, they are returned back to the closest possible state of being as they were in before their victimization as quickly as possible. This is what restitution must accomplish. Therefore, if you steal a hundred dollars from me and return it to me two weeks later, you must pay the associated arbitration and recovery fee and also pay interest to me. My rate of interest in an instance of theft would be predetermined by me. Since I charge 35% interest, you should have stolen from my neighbor who only charges 2% 🙂

    (the fact that a potential thief would have no way of knowing who charges what could be a deterrent in and of itself)

    In the case of victimization due to direct (physical) violence, again, predetermination is the key. Since we each own ourselves, it would be immoral for me to attempt a subjective valuation of, say, your right arm. I can objectively place value upon my own right arm as I can measure it against the standard of my own life. What if I were left handed? I might insure each of my arms accordingly….

    What if someone cuts off my arm in a market anarchist society? Well, restitution would have been predetermined between me and my private insurance company before it happened and I would be compensated as I’d seen fit in a rational state of mind (before the a-hole cut my arm off that is).

    What if the technology existed so that it was possible to cut off the arm of the person who cut off my arm and reattach theirs to me? Would that be moral?


    • RichNo Gravatar says:

      I think that a thief would not be deterred by uncertainty of interest, unless he plans to be caught and brought to justice. Which raises the obvious question …
      In fact, even death does not deter some criminals, and I am not referring solely to the mentally incompetent.

      For deterrence, you need a credible threat, at least.

      But the point about the subjective vs. objective valuation (the example you used is a right arm). This thought often occurs to me with respect to the possibility of surgery for my left arm. In this regard – what might be a suitable repair or fix for most people would be inadequate for me. This is because I need more than ‘normal’ use of my hand, being a guitar player.

      So, do you have any thoughts on how the (potential) thief could be convinced of the inevitability of capture, justice and settlement?


  5. Seth: You wrote: “I squirm a little bit when libertarians try to define what the “proper” amount of restitution is for a given crime. Is the punishment too light or has it gone overboard? Has a property owner overreacted in his attempt to defend his property? These are issues that have no concrete answer. That is why the contract between and among individuals, or indirectly between contracted insurance agencies/courts, is so important.”

    The problem comewith in the violations of natural right that require no contract to demand remedy. I do not need to have a non-aggression contract with you for it to be wrong for you to break my arm or steal my car. My natural right to (or ownership of) my person and property is what makes your aggression wrong and that ownership rights precede any contract or else it would a logical impossibility to form binding contracts based upon them. I agree that contracts would eliminate many situations that now end in court — for example, in child custody disputes — but they would not eliminate the need to redress violence against person and property because I would not have explicit contracts with people to forego violence against me. I would assume that as my right. Nor do I think I would have such a contract with an insurance company.

    An aspect of society with which I am not comfortable but which I think may be inevitable is how large a role convention plays in the operation of law. Certainly there are hard and fast legal rules: e.g. do not murder. But the application of law is somewhat subjective. For example, what does it mean to claim ownership of something, like a patch of land, what does it require? If you are the original owner of otherwise unclaimed land, then traditionally you mix your labor with it to establish some sort of claim; you plant a crop or build a home… But even this has subjective aspects. For example, how *much* land are you able to claim due to mixing your labor with it. A famous example is a farm with rows of corn. If you plant an acre of rows two feet apart, you can claim the entire sown acre as yours, assuming it was otherwise unclaimed, of course. But what if the rows are five feet apart or 25 feet or 1/2 mile? Can you still claim all of the land as under your cultivation and, so, *yours*? The answer to this question is partly common sense but partly convention. I believe the application of law, including restitution, would be equally determined by convention. That is, it would not be defined entirely by conventio…but social norms would play a powerful role. And, given that you need to have social acceptance of the application of law, I’m not sure that’s a bad thing.

    • Seth KingNo Gravatar says:

      The example you bring up about convention is key. Many times what libertarians view as reasonable restitution is really just arbitrary convention. This sort of thing cannot be defined using principle. Ultimately, were free-market voluntary courts in play, the judgments given that pleased consumers would win out over those that displeased consumers. This is not to say, however, that there would not be diversity, which is in complete contradistinction to the monopoly of the state.

  6. Kelly…you place an LOL after your question about an aggressor replacing a body part of a victim with one of his own. Instead of an arm, let’s say a kidney is destroyed because we don’t have to go into future medicine to speculate. X stabs Y and destroys Y’s kidney. I see no moral problem with requiring X to replace that kidney with his or her own if feasible.

    As for the victim establishing the proper restitution….I think there must be some proportionality in play as to the level of restitution for any offense. Otherwise I could demand the death penalty for stepping on my toe. One of the main functions of a court or an insurance agency would be to establish reasonable levels that would find acceptance in a reasonable society.

    • PrimeNo Gravatar says:

      I think we must ask, “proportional to what, and why?”

      Proportional to having your toe stomped on, or proportional to having your very self-ownership infringed upon? If we take the point of view of the latter, then deadly retaliation could be considered an acceptably proportional response.

      I don’t find the idea of leaving things up to convention or common sense to be a satisfactory answer. I think we can find a logical, fact-based reason for why one owes the 2 ft of land between the rows of corn, and not the 2 miles of land between another two rows of corn. For instance, the constraints of the physical size of the human body, farm equipment, amount of space plants need for light and air, and distance water and fertilizer seep into the ground have led to farmers putting this much space between their rows. Less would be detrimental to the crops, much more would be wasteful and unnecessary.
      I think we need to have a way to determine the correct course of action as objectively and logically as humanly possible. If we can’t do this, I don’t think we have a very strong argument for this proposed system of justice. If we leave so much up to convention, then we have a situation that I think does not sound very libertarian at all. To me, this seems like there may be a very big hole in what is supposed to separate anarchist justice from other systems of justice. Am I missing something?

      Thank you

      • John KindleyNo Gravatar says:

        It all depends on what the conventions are. Right now the conventions that prevail in society are very unlibertarian. Specifically, these conventions hold the text of a Constitution put together by dead men for less than noble purposes 200 years ago to be binding on the living, and vulgarly and arbitrarily equate democracy with the will of the majority (even a bare majority of 51%). It seems the goal of libertarianism is precisely to change those conventions. Apparently in contrast to many posters here, I think the so-called Rule of Lenity is a convention at the heart of liberty. So is the Presumption of Innocence. So is the notion that “government” derives its just powers from the “consent of the governed,” but instead of speaking of the “consent of the governed” I’d speak of the “consensus of the self-governing.” If 95%+ of the people in a community agree that it is just to use force to prevent or punish murder that’s a pretty good indication that force is in fact justified to prevent or punish murder, and it’s pretty clear that in any event murder isn’t going to be tolerated by that community. On the other hand, if only 75% agree that it is just to use force to prevent or punish eating magic mushrooms that’s a pretty good indication that force is not justified to prevent or punish eating magic mushrooms, and a society which values consensus and applies societally the same presumption against violence that decent people generally apply as individuals will not use force to prevent or punish eating magic mushrooms, even if, hypothetically, 75% think such force would be justified and 95% think eating magic mushrooms is “immoral.”

        • PrimeNo Gravatar says:

          I’m not so concerned about what the conventions may be as I am the dependence upon convention as part of the argument. In the same way that we logically deduce self-ownership, we should be able to determine the proper resolution to a conflict.

          • Seth KingNo Gravatar says:

            It does seem that way but I’ve yet to learn it. What others have had to say about it, including Rothbard, Block, etc. haven’t appealed to me. They all seem too arbitrary. If you figure it out let us know, okay?

            I very much like what these videos have to say about it. It’s the conclusions I came to a while ago and am happy to see it in video form.


          • John KindleyNo Gravatar says:

            Ideally, the so-called traditional common law, which John Hasnas illuminates as depoliticized law, reflects reason and natural law, and its evolution is likewise guided by reason and natural law. Each case is to be decided on the basis of Justice, informed by how such cases have been decided before.

      • Seth KingNo Gravatar says:

        I know this is in opposition to my anarcho-capitalist counterparts and ostensibly reeks of syndicalism, but I am starting to think that property really does not exist, merely claims. Property is a fiction we use similar to imaginary numbers in math. It is necessary for a well functioning society but it doesn’t really exist. If individuals do not want to be controlled by the state or other criminal organizations they need not moralize about how they own their bodies or land, merely that they claim it. But a claim is really only as good as what you can defend, so if we want control over our bodies we must not only claim them as our own, but learn how to defend them as well. Moralizing about how our bodies are our rightful property will get us nowhere. If you think I’m kidding then I encourage you to ask a red man if he is the rightful owner of the land within the United States because his great ancestors got it stolen by the white man. His answer is moot.

        • John KindleyNo Gravatar says:

          I urge all anarchists to give Henry George a second look. Georgism represents a principle by which such claims may rest not only on force but on justice. I’m of the opinion that in an anarchic society “national defense” (i.e., defense not of a nation but defense from nations) will still be necessary, that such defense will necessarily be defense of a territory by those in the territory, and that Georgism would provide the natural means of funding such defense.

          Our Enemy, the State, by Albert Jay Nock, whom I personally regard as my number one libertarian muse, was shot through with Georgism.

        • PrimeNo Gravatar says:

          That’s actually something I’ve heard an-caps say… I don’t think anyone here is implying that property is a quality of an object or of us. It is a claim. Anyone can make a claim that something is theirs to exclusively control, but what matters is who has the best claim. Kinsella refers to this as “objective link,” but I haven’t explored his writing on it that much. It’s not syndicalist.

          • Seth KingNo Gravatar says:

            You’re right. I’m not knowledgeable enough on syndicalism to say what it is, but when I say that “property doesn’t exist” I know that that is something syndicalists often say.

            • JustSayNoToStatismNo Gravatar says:

              Property doesn’t inherently exist. It is a social convention that I appreciate for the benefits it confers to humanity. I desire a private property society because it minimizes things like wars, prisons, torture, intimidation, rape, and murder. I will not try to prove that my goals are objectively correct or virtuous. I will claim that (and can convincingly explain why) market anarchism is the most effective way to achieve these goals that almost everyone else claims to share.

  7. Thomas KroenkeNo Gravatar says:

    Not knowing the severity of the punishment/consequences of you committing a crime against another is, I believe, a powerful deterrent. Thus, the victim ought to set the punishment. Except for the mentally ill and children, there ought not be such an idea as “unreasonable” consequences to being a person who feels it is OK to violate anothers person or property. The only way a true voluntary society will ever work is if everyone agrees that violation of another is “wrong” in an absolute sense and will not be tolerated or excused. The rub always comes in when enforcement must take place. Perhaps declaring someone and “outlaw” in the medieval sense, wherein anyone/everyone can target you for punishment/abuse once you are deemed an outlaw, e.g. outside of legal protections is at least part of the answer. Mercy would be up to the victim as well. I believe it is wrong to assume everyone is going to be a vindictive ass and look for maximum punishment for minimal crimes. As for demanding the death penalty for stepping on one’s toe? Was it an accident or malicious? No limit to malicious acts, in my view. Proportionality just means that if I am willing to pay the price, I’ll willingly do the crime. A rich person can injury another and just pay a fine, just as corporations do now. The idea must be to make the criminal pay more than he is willing to pay to be a criminal. Fairness is not a concept that ought to be extended to those who willingly and purposely harm others. Do we wish to extinguish the very idea of doing harm to another or not? There is a difference between being the initiator of force/wrong against another and responding to that aggression.

  8. murphasaurNo Gravatar says:

    The mongols required that an offender deliver nine times the amount stolen – or his life. I tend to agree with Randy Barnett’s judgement that two times whatever it takes to restore the victim whole is adequate. (Randy Barnett – The Structure of Liberty)

  9. MamaLibertyNo Gravatar says:

    Since no person can read the mind or anticipate the intent of another, the logical outcome for any violent attack is death at the hands of the intended victim or their proper guardian.

    In a rational, free society, the prospect of this would render most aggressive crime vanishingly small in a short time. The even rarer case of a perpetrator surviving would create a dilemma, most likely, but would be resolved if people remained rational and logical. The notion that this sort of adjudication would or should take up much time and effort is ludicrous.

    Restitution for petty crime is a wonderful idea that would only be possible in that same rational, logical society because only then would most people have assets with which to pay it. Otherwise, indigent aggressors would have pretty much a free hand since there is not much of a way to force people to be productive. In that case, one would have to consider virtual slavery and prisons again…

  10. John K.: The Hasnas article on the prudence of Rule of Law has had a deep impact upon me. I could critique it and find fault but there is too much of value in the piece…Indeed, Rule of Law is one of the questions that is now in active play in my mind so thanks for bringing it up explicitly.

    Here’s where I stand…albeit, wide open to contradiction and persuasion. A just legal system that ‘works’ in any society would have to be a combination of rule-based and subjective evaluation. (Note: subjective does not mean arbitrary, as I’ll discuss in a moment.) An example of “rule based”: transgressions of the law would be defined. Thus, you would know that stealing my cow was a crime but petting it on the haunches was not. An example of subjective evaluation: within a certain reasonable range, the penalty for stealing etc. would be variable depending on circumstances. I, too, like Randy Barnett’s estimate of 2x what would be necessary to make the victim whole but another reasonable range may evolve.

    I think that best — both in terms of justice and stability — that we can expect is a common law evolution situation that is a mixture of common sense rules and standards that conform (at least well enough) to the norms of a society. This is not arbitrary in several ways. The rules themselves would be hard and fast. Thus, prohibitions against murder, theft, rape, etc. would be objective and, equally, there would be evolved standards of application of punishment — by which I mean restitution. The standards would be ‘defined’ by precedent (as is the custom in common law) and by what society in general is willing to tolerate. Here, a jury might be useful as you would need 12 people chosen from the community to assent to a punishment and this would act as a restraint upon viciousness or corrupt leniency. Certainly, punishment would vary under this system but it would do so within set parameters and do so in a manner that allowed the healthy evolution and adaptation of law’s application.

    An exception to the foregoing would be insular communities, of course, such as Mennonites, in which the people explicitly contract with each other on what will considered an offense (e.g. anything against Biblical teaching) and the punishment to be rendered…or, at least, the method of punishment such as judgment by an elder.

    Prime…I believe we are more in agreement than you may realize because I concur. The amount of land that can be claimed by planting rows of corn comes down to common sense and consensus. I am used to arguing with people who flatly dismiss the idea of any vagueness in the law — any room for evaluation — as an outrage, whereas I consider it to be a natural outcome of the human condition. I think it is all to the best that law evolves as society does *as long as* the basic prohibition against the initiation of force is preserved. I also think a system that does not include some provision for popular consensus in how the law is applied will not be stable and have a short lifespan. Again, perhaps that consensus could be handled by a jury system that rules on the severity of a punishment.

    Already, however, I am uncomfortable with my own solution as I have reservations about the propriety of a jury system. Indeed, I think that should be the next topic which I address on the Daily Anarchist.

    • John KindleyNo Gravatar says:

      The Hasnas article on “The Depoliticization of Law” is also directly on point:

    • PrimeNo Gravatar says:

      I don’t want to throw out consensus. It would be difficult to accomplish anything if we hardly agreed treat each other justly.
      I think that, ideally, you could take any two or more individuals groups of people (if a jury is being used), present to them all of the known facts of a conflict, and then considering those facts from a libertarian framework, have them all be able to separately arrive at pretty much the same conclusion, regardless of differences in cultural norms. I would think given the strength of the logic of our systems of morality and economics, we should be able to accomplish that. I think convention is useful for expediency, but we should readily entertain challenges to it in any case of conflict. I think there should be as little subjectivity as possible when resolving a case, particularly for anyone who is not the victim.

      • John KindleyNo Gravatar says:

        Consensus, as I conceive it, is close to or identical with the very essence of anarchism, and of the “libertarian framework.” In the realm of collective action it whittles the use of force down to what Nietzsche called the “song of the necessary,” in the same diatribe in which he called the State the “coldest of all cold monsters.” Unless “we” all agree violence is necessary and justified, “we” don’t use violence.

  11. I enjoyed the article and will likely want to print it out and distribute it.

  12. Mark AnthemNo Gravatar says:

    Incarcerating a man in a rape cage because he drunkenly ran into my daughter and put her in the hospital for three weeks is not restitution. Let’s say $120,000 could be agreeable. He has $40,000 which I legally confiscate and then he gets incarcerated in the nearest Ultimate Prison Complex until he earns me the $80,000 balance or dies trying. This UPC is a 24/7 reality show people pay to watch. There are all kinds of dirty degrading jobs to be done, the kind people want to watch for amusement. There are also MMA fighters in arenas you fight for various prizes based on your physical condition. This type of capitalist justice spectacle could become a billion dollar franchise opportunity and bring real justice and crime deterence to the world.

  13. Bob C.: I am sure the Daily Anarchist would have no objection to your printing out the piece and distributing it…especially if you gave a link back and full credit.

    Mark: That’s the Achilles heel of all legal systems — the crimes for which no restitution or punishment is enough to bring justice. At some point, you have to do a comparative assessment and choose the system that does it best rather than does it ‘right’…because there is no right. That’s the horror of violence. It sets the natural order so viciously out of whack that it may not be possible to ever return it to ‘right’. My ideal “just system” is 90% prevention so that you don’t have to deal with raped women, traumatized children, men killed for $10 in their wallets. Imagine a free market law enforcement industry that actually existed to prevent violence, that drew its customer salary from the efficiency with which it managed to prevent violence. What a revolution that would be! Oh Brave New World in which I wish to live.

    • John KindleyNo Gravatar says:

      I think Justice is most appropriately defined not positively but negatively, as “the absence of crime.” All the things we do to try to fight or prevent or somehow provide “satisfaction” for crime are then seen to be “justice” only in a secondary and derivative sense. The criminal defense attorney serves Justice more directly than the prosecutor.

  14. James A.No Gravatar says:

    Seems I may be a bit late to this party, but the biggest problem I have with the idea of a restitution-based system of law is that it basically allows one to break the law as long as one can afford it. Therefore, I can allow my company to pollute a river as long as the product I manufacture (that causes the pollution) is worth more in the market than the cost of the restitution/fines I would pay. Or I can ignore speed limits on the highway because I can afford to pay any associated fines. Now we set up a system where those with wealth can do whatever they can reasonably afford and those without cannot do anything without worrying about stepping on the toes of the wealthy.

    And most of the laws discussed here deal with personal property. But who’s property is the Hudson River or the Everglades? Especially in a proposed anarchic society. They are no single person’s “personal property” and yet we can all agree that destroying or polluting them does harm to all. So to whom is restitution paid?

  15. Hi James: There is no late or early to this party as I will be continuing to post articles in a series intended to explore what free market justice would look like and to stir up discussion on this evolving project. I will be answering comments appended to articles all along “the chain” as they are posted. One article will definitely have to deal with how the free market could address issues like pollution in terms of the damages inflicted. I don’t think it is an insuperable problem for a justice system based upon restitution…but read the article when it appears and see if you agree.

  16. JonNo Gravatar says:

    The restitution needs to factor in the probability of getting caught.

    For instance, if you steal $100 and have a 5% chance of getting caught, then when you do get caught the repayment must be more than $2000 to serve as an effective deterrent. Otherwise, a perspective thief would simply play the odds and pay restitution when he loses.

    The cost of finding the thief could be 40 hours at $100 / hour. If caught, he should be expected to pay $4000 + $100 / probability of getting caught. The more money you invest looking for him, the greater the ultimate price will be!

    The fundamental principle of justice is that no man is stolen from in order to punish another man. So, if a homeless man is killed who is going to pay to track down the killer, try them, and ultimately punish them?

    Some people may find it worthwhile to track down the individual as a pro-active self defense (know your potential enemy), but once you found them you have no standing against them and thus cannot use violence against them.

    So now that we have established the principles, how do you punish a homeless man who steels $100 from you? He cannot repay you. You would have to spend more than $100 to ‘enslave’ him.

    This is where insurance comes to play. Sometimes it is cheaper to insure against infractions rather than collect by force. The insurance company would then have the collective resources to selectively force people into labor camps until their debts are repaid. The insurance company would have motive and resources to track down the killer of the homeless individual. They could potentially have a standing against that individual, or at the very least be able to organize a boycott of that individual and publish their name without actually committing aggression against them.