Rape, violence, and drugs are ubiquitous in prisons, so it is not surprising that recidivists commit a hugely disproportionate share of crime. Government prisons and so-called private prisons have no incentive to rehabilitate prisoners or improve prison conditions because taxes are their source of revenue, which is guaranteed regardless of performance.
Lawmaking, law enforcement, courts, and prisons are inextricably linked within a coercive government monopoly. As long as this monopoly remains, it is difficult to imagine a substantial performance improvement. In contrast, repealing the monopoly would expose all of these functions to the competitive marketplace, and history can be our guide.
The Marketplace
Historian Carroll Quigley wrote:
“… there was clearly a period, about 900 [AD], when there was no empire, no state, and no public authority in the West. The state disappeared, yet society continued.”
“It was discovered that economic life, religious life, law, and private property can all exist and function effectively without a state. … In Rome, in Byzantium, and in Russia, law was regarded as an enactment of a supreme power. In the West, when no supreme power existed, it was discovered that law still existed as the body of rules which govern social life. Thus law was found by observation in the West, not enacted by autocracy as in the East. This meant that authority was established by law and under the law in the West, while authority was established by power and above the law in the East.”
Think of laws made by the State as being “top-down law-making,” or “authoritarian law.” Think of laws made by the people themselves as being “bottom-up law-making,” or “customary law” (law established in recognition of evolving customs). Under customary law, when an offense was committed, victim restitution, not imprisonment, was expected. The offender must compensate his victim. Furthermore, it was unlawful to assault or kill an offender who had not been given sufficient opportunity to compensate his victim.
Customary law prevailed in Ireland for centuries. Murray Rothbard wrote, “Preconquest Ireland was not in any sense a “primitive” society: it was a highly complex society that was, for centuries, the most advanced, most scholarly, and most civilized in all of Western Europe.”
Anglo-Saxons formed legal institutions called hundreds. Each hundred consisted of about one hundred individuals or households. Membership in a hundred was voluntary, but there were strong incentives to join. When someone inflicted harm on another person or the property (e.g., theft) of another person, the other members of the victim’s hundred were obligated to assist in the pursuit and prosecution of the accused. A member who did not honor his obligations would be expelled from the hundred, and his tainted reputation may prevent him from being accepted into another hundred. He becomes an outcast, lacking the benefits of a protection association.
Arbitration was used when an offender and victim could not agree on an appropriate level of restitution. Arbitrators’ rulings were not binding. However, an offender who refused to submit to arbitration or did not accept the arbitrator’s decision would be socially ostracized and legally subjected to physical retribution (even death) by the community.
Internalizing Costs and Benefits
Bruce Benson wrote,
“… voluntary recognition of laws and participation in their enforcement is likely to arise only when substantial benefits from doing so can be internalized by each individual.” (emphasis added)
This is a crucial point. The cost of law enforcement — providing aid to other members when needed — was borne by each member of a hundred. Likewise, the benefit of law enforcement — receiving aid (leading to restitution) from other members when needed — accrued to each member. In other words, each member internalizes the benefit and the cost, thus creating an incentive for law enforcement.
This stands in stark contrast to our system of authoritarian law where restitution for victims is almost non-existent, and a majority of offenses are not even reported to the police because the police and courts fail to solve most crimes. Thus, police, court, and prison bureaucracies internalize the benefit (tax revenue), but not the cost (actual crime-solving, rehabilitation). And citizens are forced to internalize the cost (taxes) without the benefit (restitution).
Notice the difference between ‘victim justice’ and ‘criminal punishment.’ Victim justice requires offenders to compensate their victims. Criminal punishment requires taxpayers, including victims, to provide financial support for prisoners, as well as for ineffective police, court, and prison bureaucracies.
Furthermore, in contrast to the government’s inability to solve most crimes, ‘victim justice’ under customary law actually serves as a disincentive for individuals to commit offenses in the first place: “If I kill, rape or steal, I know for certain that a protection agency will be hot on my trail.”
Continue reading…
From Mises.org, here.
