Against the Criminal Justice System, Pt. II: The Criminality of Criminal Law
Originally published on the Students For Liberty blog on November 25, 2015. You can read the full collection of SFL re-posts here.

In the first post of this series, I gave some reasons why libertarians ought to reject the practice of punishment. As an alternative, I suggested that the only proper role of law is dispute resolution, and that law’s violence can only be used in either direct defense or the collection of restitution. In effect, this eliminates criminal law, leaving only civil law in its place.

In what follows, I’ll try to bolster that conclusion by briefly showing why libertarians ought to oppose criminal law, beyond just the illegitimacy of punishment.

Victim-Centric vs. Sovereign-Centric Views of Law

Libertarians (rightly) spend a lot of time talking about the injustice of victimless crimes. Yet if we accept the idea of criminal law, it’s not clear why; according to the framework it requires, crimes are never really about the actual victims to begin with.

Rather, when one person murders another, criminal law tells us that the real crime is against “society.” This is why there are District Attorneys, why they can bring cases to trial against the will of the victim, and why those cases are titled things like “The People of the State of California vs. John Doe,” and not “Jack Doe vs. John Doe.”

Historically, the idea descends from a time when all crimes were seen as crimes against the king, and punishments were the penalty for challenging the king’s authority. As philosopher Gary Chartier explains[1]:

 The contemporary legal category of crime concerns what are now frequently categorized as assaults on ‘the public’ … or ‘the state.’ In a putatively democratic polity, the state will be rhetorically (mis)identified with the entire population. But of course the habit of categorizing the state as the object of crime grew out of the identification of the state with the sovereign in a monarchy.

A crime was an act that was understood to be against the king for multiple reasons: because it violated the king’s law, and so challenged the king’s authority; because the king feared spillover effects from some acts of great violence … because declaring something an act against the king meant requiring use of the king’s courts, … and because putatively criminal acts might reduce the king’s tax revenues. In addition, of course, some offenses … could only be offenses given the existence of the king. Insults to the king, perhaps assaults on the church established by the king, certainly attempts to overthrow the king – a separate category was purportedly needed for these, in part because they would be inconceivable without the king, and so would not figure in a system of law oriented toward the resolution of disputes among legally equal persons, and partly because there would be every reason for the king to want to underscore their great significance.

In other words, since the beginning, criminal law has been tied to overtly authoritarian notions about sovereignty. For libertarians, who believe that sovereignty lies not with the king, nor with “the people,” but with actual flesh and blood persons (i.e., with individuals), this makes criminal law unacceptable.

Mens Rea Entails Thought Crime

A consequence of criminal law’s sovereign-centric framework is that it concerns itself not just with actus rea (the guilty act), but also mens rea (the guilty mind). The criminal must be found not only liable, but morally guilty. Punishments also differ according to how morally guilty they were – more is done to the murderer whose actions were meticulously planned and deliberate than one who lashed out in a fit of rage.

This may seem unobjectionable until we realize what it means: under criminal law, all crime involves thought crime.

In order for an act to move from being a tort to a crime, and for its response to move from restitution to punishment, mens rea must be established. In order to justify the accompanying increased violence, defenders of criminal law must therefore hold that criminal thoughts are an independent justification for violence. Otherwise, the move from restitution to punishment is not within proportionality.

It is difficult to imagine a more immediately repugnant concept for libertarians than thought crime, which gives us another reason to dispense with any attachment to criminal law.

Criminal Law Lends Itself Towards Rights Violations

Beyond just those two inherently illiberal features – sovereign-centricity and mens rea – there is another reason for libertarians to be wary of criminal law. Namely, it opens the floodgates to even more obviously unlibertarian uses for law.

As was mentioned earlier, criminal law is by its very nature unconcerned with victims, and instead focused on abstract harms against society more generally. This makes it much easier to argue for laws penalizing perceived moral wrongs, paternalistically preventing various social ills, or whatever else you could say was dangerous to society as a whole.

Historically, this is shown by the fact that criminal law is imposed on society by the state, rather than evolving naturally out of voluntary institutions. Those legal systems that have been the most libertarian in their shape – the least state-like, the most polycentric, the most market-like – have always tended more toward tort law and restitution than criminal law and punishment. This is the case with medieval Iceland, pre-conquest Ireland, pre-conquest England, and Somali Xeer.

Under these systems, law is not imposed through legislation, but emerges from actual decisions between actual people in actual disputes. Hence why they don’t require the separate criminal code, and are more concerned with restoring what can be restored to the victim than with doing damage to the offender.

Carving Out a Very Particular Role for Law

One strong advantage of shifting to a purely restitutive, tort-based legal system is that it carves out a very specific function for law. Under this framework, the law is about neither solving social problems (including crime!) nor making moral pronouncements on behalf of the community. It is specifically about settling particular disputes between particular people and getting restitution for victims.

Part of what this means is that the implications a pure restitution view of justice, free from punishment and criminal law, has on politics are even more far-reaching and radically libertarian than they immediately appear. A future post in this series will be devoted to more fully-fleshing out just what some of those implications are. In the next one, though, we’ll be addressing some common criticisms to pure restitution theories of justice.

[1] Anarchy & Legal Order: Law and Politics for a Stateless Society, pg. 264
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