Law and Violence
by Roy Halliday
What laws should be enforced in a free nation? How should the laws be enforced? When, if ever, is it lawful to use violence? Who has the authority to enforce the laws? Libertarians do not all agree on the answers to these questions. In fact, libertarians hold several mutually exclusive views on legal principles. In this paper I describe the fundamental legal principles of various libertarian schools of thought, then I argue for using the non-aggression principle as the fundamental law in a free nation.
I tend to regard laws, whether I approve of them or not, as rules that are enforced in a society at the point of a gun or with the threat of violence looming in the background if the lawbreaker offers resistance to the police. Some others interpret law more broadly so that it also includes the customs, traditions, and rules of etiquette that are enforced non-violently by various ethnic groups, religious communities, and social classes. Whether you define law narrowly or broadly, your views about when it is morally legitimate to use violence will affect your opinions about which laws are legitimate and what methods are appropriate for enforcing legitimate laws.
The following chart lists six libertarian philosophies with regard to the legitimate use of violence. Each group approves of the level of violence of the groups below it in the chart plus violence for the purpose listed for the group itself. Each group disapproves of violence used for the purposes listed higher in the chart. The four least-violent groups do not condone the use of force against people who have not committed a crime or a tort, which is the sine qua non of the State, so they are anarchists. The two most violent groups believe we need the State to protect our rights and freedoms, so they approve the use of violence against non-aggressors to prevent them from competing with the government, but they recognize that the role of the State must be limited so that it does not take away all of our liberty. Only three of these six groups actually have more than a handful of adherents. I can't think of a single person who is a minarchist in the strict way that I have defined minarchism.
After the chart, I describe the six groups in more detail—from the least violent to the most violent. I use their views toward the non-aggression principle as a way to compare them. My explanation of the non-aggression principle is in the sidebar on the opposite page.
At one extreme are the Christian libertarians and the followers of Robert LeFevre who are opposed to all violence. They deny the right to self-defense as most people understand that right. For example, they regard forcible rape as a crime, but unlike other libertarians, they also regard violent resistance to forcible rape as a crime. To support this view they argue that you cannot use brute force to make a person virtuous, because if virtue is not chosen voluntarily it is not really virtue. So when a woman is attacked, she has the right to use moral reasoning to persuade her attacker to repent, but she has no right to use violence to impose her desire not to be raped.
There isn't much point in distinguishing between criminal and non-criminal behavior if you can't respond differently to them. In the non-violent legal system, the concepts of crime and law have no practical significance.
On the other hand, the pacifists are the only ones who believe that all relations between people should be voluntary and that it is always wrong to use violence to impose your will on others. My own view comes close to this, but I must concede that these extreme pacifists win the prize for being the purest and only consistent voluntaryists.
These extreme pacifists, or voluntaryists, also deserve the prize for being the world champions of self-ownership. No other philosophy is completely consistent with the idea that each individual has the absolute right to own himself.
Pacifists believe that laws should be enforced voluntarily. They are one of the four libertarian anarchist groups in my classification scheme.
The nearest group to the pacifists is the group that I belong to. This group avoids the absurdities of extreme pacifism by accepting the common-sense view that the individual has the right to use brute force to defend himself against invasion. In other words, we believe in the right to self-defense, and we believe this right justifies the use of violence when the following three conditions are met:
1. The violence is directed only against someone who is invading someone's rights (aggressing).
2. The purpose of the violence is to stop that invasion.
3. The violence is necessary to stop the invasion.
We believe violence against a person without his consent is morally justified when all three of these conditions are satisfied, and only when all three of these conditions are satisfied. Since the distinguishing characteristic of this view is the absolute right to self-defense against aggressors, I have chosen to call this view self-defense libertarianism.
Even though self-defense libertarianism occupies one of the few logical positions on the libertarian-violence spectrum, and even though it seems like a view that most people would find more acceptable than total pacifism, I have never seen self-defense libertarianism described anywhere. As far as I know, I am the first person to describe it, and I may be the only one who accepts it.
The fundamental law of the self-defense libertarians is the non-aggression principle. In this legal theory, intentional and unintentional violations of the non-aggression principle can be legally met by violent resistance. All other acts of violence imposed on someone without his consent are illegal.1
The next group of principled libertarians on the violence spectrum consists of those who oppose violence against people without their consent except for self-defense and to extract reparation from criminals and tortfeasors. I call them free-market reparationists because they believe the free-market can completely replace the State and because their belief in using violence to obtain reparation is their only deviation from the non-aggression principle.2
Like the self-defense libertarians, the free-market reparationists believe it is legitimate to use violence against a criminal to stop him from committing a crime. However, unlike the self-defense libertarians, the free-market reparationists do no regard the right to self-defense against aggressors as an absolute right. Instead they believe criminals and tortfeasors lose this right to some extent and do not get their right to self-defense back in full until they have paid for their crimes and torts by compensating their victims. Consequently, in addition to condoning violence against a criminal to stop him from committing a crime, free-market reparationists condone the use of violence against criminals and tortfeasors to force them to make reparations.
The fundamental law of the free-market reparationists is a modified version of the non-aggression principle:
No man or group of men may aggress against the person or property of anyone else, except to force him to make reparations to the victims of his crimes and torts.3
This group, like the self-defense libertarians and the free-market reparationists, opposes the use of violence against anyone who has not violated someone's rights, so this group is still within the anarchist camp, along with the pacifists. But with regard to invaders, the free-market retributionists condone three reasons for violence: (1) for self-defense, (2) to force a criminal or tortfeasor to compensate his victim, and (3) to punish a criminal for his crime. The leading exponent of this point of view in the 20th century was Murray Rothbard. The Rothbardians probably constitute a majority of the individualist-anarchist wing of the libertarian movement. I have chosen to call them free-market retributionists to emphasize that they deviate from the non-aggression principle on the issue of punishment (as well as on the issue of reparation).
Like the free-market reparationists, the free-market retributionists do not believe in the absolute right to self-defense. They believe that criminals lose this right until they have compensated their victims and been punished for their crimes.
I contend that the pacifists and the self-defense libertarians are the only ones who consistently uphold the principle that it is wrong to initiate violence. The free-market reparationists and the free-market retributionists try to reconcile their views with the non-aggression principle by arguing that forcing a criminal to make reparation and imposing physical punishment on a criminal are not examples of the initiation of force, because the criminal is the initiator of force, and reparation or retribution, like self-defense, is a response to aggression. The problem with this argument, as I see it, is that the violence used in legitimate self-defense occurs while a criminal or tortfeasor is initiating aggression, whereas the violence used for reparation or punishment generally takes place after the criminal or tortfeasor has stopped his aggression. Therefore, violence used to compel compensation to a victim or to punish a criminal constitutes a new round of aggression and violates the non-aggression principle.
The free-market retributionists appeal to our innate feeling that criminals deserve to be punished for their crimes. Few of us can deny that we derive satisfaction from seeing harm come to bad people. However, the pacifists, the self-defense libertarians, and the free-market reparationists reject coercive punishment. Instead, they say we should restrain our desire for retribution rather than inflict physical punishment on criminals without their consent.
In addition to the moral objections from the less violent libertarians, the free-market retributionists have to face the argument from the more violent libertarians who say that we need government to administer punishments.
What is the objectively correct punishment for stealing a car? A whip lashing, a prison sentence, community service, a fine—are all incommensurate and arbitrary. There is no conclusive answer. But surely to whip, imprison, enslave, or fine someone more than he deserves is a crime. That is why most retributionists agree that we need a government to select one schedule of punishments and impose it impartially on all criminals in society. (I believe that the free-market reparationists have a similar problem. There is no way to prove conclusively that any particular form or amount of compensation to a victim of a crime is exactly correct. So free-market reparationists risk violating the rights of criminals and tortfeasors by using violence to extract reparation without the criminal's or tortfeasor's consent.)4
The fundamental law in the legal system of the free-market retributionists is a modified version of the non-aggression principle:
No man or group of men may aggress against the person or property of anyone else, except to force him to make reparations to the victims of his crimes and torts or to punish him for his crimes.
The minarchists are the next group on the scale of increasingly more violent libertarian legal theorists. They are called minarchists because they believe we need a very small State, whose functions are limited to enforcing justice and protecting us from criminals. Minarchists are morally opposed to the initiation of violence against people without their consent except as follows:
1. It is legitimate for anyone to use violence against aggressors in self-defense.
2. It is legitimate for designated government officials to use violence against convicted criminals (and tortfeasors) to force them to pay reparation to the victims of their crimes (or torts).
3. It is legitimate for designated government officials to use violence against convicted criminals to administer government-designated punishments.
4. It is legitimate for designated government officials to use violence against anyone to prevent him from competing with the government in assessing and enforcing reparations and punishments for crimes.
Unlike the anarchists, the minarchists condone the use of violence against people who have not violated anyone's rights. The fundamental legal principle of the minarchists is a highly modified version of the non-aggression principle:
No man or group of men may aggress against the person or property of anyone else, except for authorized agents of the State who may use aggression to (1) force a person to make reparations to the victims of his crimes or torts, (2) punish a person for his crimes, or (3) prevent anyone from competing with the State in administering punishment of criminals.
The most violent legal theory on the libertarian spectrum is the limited-government theory. The limited-government libertarians have the same view of violence as the minarchists, except that the limited-government libertarians believe the government needs to provide more functions and has to forcefully interfere in the lives of peaceful people more than the minarchists believe is necessary. The difference between the minarchists and the limited-government libertarians is that the highest legal principle of the minarchists is a uniform system for protecting rights and enforcing reparations and punishments, whereas the highest legal principle of the limited-government libertarians varies from one person to the next, depending on which services the individual wants the government to provide.
Because limited-government libertarians have a variety of reasons for holding their views, and because this is the least radical of the natural-rights-based libertarian groups, it is the largest libertarian group. It overlaps the non-libertarian mainstream of society. It includes principled libertarians who have not thought through their principles, and it includes people who place practical considerations above moral principles.
The fundamental legal principle of the limited-government libertarians, if they can be said to have any, could be the following version of the non-aggression principle, which is modified to such an extent that it might better be named the tyranny principle:
No man or group of men may aggress against the person or property of anyone else, except for authorized agents of the State who may force a person to make reparations to the victims of his crimes and torts or to punish a person for his crimes or to prevent a person from doing anything at all that the State has decided to prohibit or to compel a person to do anything at all that the State has decided to make mandatory.
This is a bit unfair to the limited-government libertarians, because they generally favor placing restrictions on the State, such as those listed in the Bill of Rights. But history has shown that such restrictions can be overcome, especially when the State insists on having the authority to interpret what the restrictions mean.
|Limited-Government Libertarians||for whatever they think the State should do||Ayn Rand|
|Minarchists||to maintain the State's monopoly on retaliation|
|Free-Market Retributionists||to punish criminals||Murray Rothbard|
|Free-Market Reparationists||to compensate victims||Randy Barnett|
|Self-Defense Libertarians||for self-defense||Roy Halliday|
How can we reconcile these different philosophies of legal violence?
We can safely ignore the pacifists, because they don't believe in imposing their legal philosophy on others by force. But how could a mixed society of libertarians from the other camps be acceptable to any of them when each group believes they have the right to use violence to enforce their own particular legal principles and each believes they have the right to use violence in self-defense against the others? If the free-market reparationists and free-market retributionists try to open private courts and penal institutions, the minarchists and the limited-government libertarians will try to shut them down. Each group would regard the others as criminals.
Roderick Long has devised a clever solution to this problem in a free nation consisting of minarchists and anarchists. He proposes the nation be partitioned geographically into two regions: an anarchist region in the center (Inner Zimiamvia) surrounded by a minarchist region (Outer Zimiamvia). Inner Zimiamvia and Outer Zimiamvia would be regarded by the rest of the world as a single country with two provinces, but internally they would have separate legal systems and would not interfere with each other. Because Inner Zimiamvia is surrounded by Outer Zimiamvia, Outer Zimiamvia, by providing a governmental interface to the rest of the world and by providing national defense for itself, would ipso facto provide these same services to Inner Zimiamvia at no additional cost. This arrangement would allow both minarchists and anarchists to test their systems and provide empirical evidence that they work.5
Roderick's proposal solves the problem of the incompatibility of minarchy and anarchy, but the problem of the incompatibility between the self-defense, reparation, and retribution anarchists remains and so does the problem that minarchists have many different opinions about what the limits on government should be.
I have another solution. I suggest that we reach a compromise. The compromise that I suggest is that we do it my way.
Let's use the
non-aggression principle as the fundamental law!
Let's use the
non-aggression principle as the fundamental law!
The pacifist philosophy is not viable because it does not allow enough protection against criminals. A legal system based on non-violence would quickly be abused by criminals who would take over society, eliminate political freedom, and replace the pacifist legal system (which is a vacuum) with a legal system that institutionalizes predation.
Each of the other libertarian legal theories can support a viable society that allows a great deal of personal liberty.
The pacifist philosophy and my theory (that the only legitimate use of violence is for self-defense) are the only theories that are completely consistent with the non-aggression principle. Therefore, my theory is the only viable libertarian legal theory that is consistent with the non-aggression principle.
Since it is the only viable legal theory that is compatible with the non-aggression principle, it is the best libertarian legal theory because it allows the most freedom.
How would it work?
In a society where people recognize the right to self-defense against aggression, the law is enforced privately by whoever chooses to enforce it. Private individuals and organizations offer to arbitrate disputes and assess compensations. There is no definitive repository of laws or legal rulings. The non-aggression principle is the only law. All other legitimate laws such as the laws against murder, assault, and theft are already contained in the non-aggression principle. Everyone is free to expostulate on the meaning of the non-aggression principle, as I do in the sidebar. But no one's written laws need to be regarded as authoritative.
Arbitration companies might choose to publish their procedural rules, rules of evidence, and rules for assessing compensations. This would help disputants to decide which arbitrator to go to, if any.
Arbitrators will probably find it useful to study prior legal rulings, but they will always retain the option of reasoning directly from the non-aggression principle in each case. They will succeed or fail in their legal careers based on the reputations they earn for the wisdom of their decisions.
If I were involved in a contract dispute, I would prefer to use a judge who was familiar with the principles of contract law that were developed over the years in common-law courts. I imagine that other people might feel the same way. Consequently, arbitration companies would probably hire legal scholars to sort through case law and legal treatises. Instead of merely looking for legal precedents and loopholes, they would look for sound arguments developed in previous cases that might be useful in the future. They might compile their own databases and select their own rules of procedure from the best procedures used in the past. Competition among arbitration companies would encourage them to find and adopt legal principles and procedures that enhance their reputations for fairness and professionalism.
The free market will produce better methods of enforcing the non-aggression principle and settling disputes than any individual theorist could hope to do on his own.
Objections to Self-Defense Libertarianism
Objections to Self-Defense Libertarianism
The two main objections that I anticipate people to raise against my theory of self-defense libertarianism have to do with the fact that it prohibits using coercion to punish criminals and to force criminals and tortfeasors to compensate their victims. The first objection is that these restrictions would make society impossible. The second objection is that these restrictions violate our sense of fairness.
Objection 1. It Won't Work
One argument against self-defense libertarianism goes like this:
1. If criminals are not punished and not even forced to compensate their victims, they have nothing to lose by committing crimes.
2. Since they have nothing to lose by committing crimes, more people will become criminals and each criminal will commit more crimes.
3. Society will fall apart.
My response to this argument is that the first premise is false. I admit that fear of punishment deters many people from committing crimes. I know this is true because fear of punishment works for me. It not only inhibits me from committing real crimes, it also inhibits me from committing victimless crimes that the State has decided to prohibit. I also admit that forcing criminals to compensate their victims would discourage many people from committing real crimes. But fear of punishment and forced compensation are not the only means to deter crime.
Remember that I named my theory self-defense libertarianism. In this system everyone has the right to use violence if necessary to defend his rights. We also have the right to help each other to defend our rights and to hire professionals to defend us. So it is not true that under this system people have nothing to lose by committing crimes. They could lose their lives.
Under my system of law people 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. As I wrote in an earlier paper:
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.6
In addition to these measures for fighting crime, anyone who is deciding whether to commit a crime should also consider the effects on his own conscience, the effects on his reputation, the possibility that he might be ostracized or boycotted, and the possibility that the victim or the victim's family will start an illegal vendetta against him to exact revenge. All of these considerations will tend to reduce the number of pre-meditated crimes.
Objection 2. It Isn't Fair
I don't have a clear definition of fairness, but self-defense libertarianism does not always fit with what I regard as fair. For example, I don't think it is fair to discriminate against people on the basis of their race or on any other irrational basis, but I believe we have the right to do it.
The non-aggression principle permits many inhumane, cowardly, perverted, and unfair acts. For example, it is inhumane and cowardly to see a person in distress, a drowning child for example, and do nothing to save him. But it is not a crime. No one has the right to force you to be a hero.
Aborting her baby is possibly the worst thing that a woman has a right to do. But, even though an innocent human life is taken, no one has the right to use violence to prevent a woman from ridding her body of a human parasite, even if we assume the fetus has all the rights of an adult.
It isn't fair that some children in disease-ridden, third-world countries, or crime-ridden ghettos in American cities have little hope for prosperity. But these inequities do not justify redistribution of wealth by the State.
Except for abortion, these examples of differences between justice and fairness are not controversial in libertarian circles. But self-defense libertarianism has more differences between justice and fairness than the more violent libertarian theories.
According to the ordinary man's idea of fairness, a criminal should compensate his victims and should be punished for his crimes. I think this is fair too. I admit that my legal system is not fair. However, as I interpret the non-aggression principle, it is unjust to impose this kind of fairness by violence.
Some moral questions do not have provably correct answers. These issues fall outside the scope of justice, which means we do not have the right to use violence to impose any particular answers to these questions. One of these questions is: "What is the proper punishment for a particular crime?"
Justice demands that the exact same property that was taken without the owner's permission be returned to him: nothing more, and nothing less. When this cannot be done, justice cannot be done. Principles of fairness or retribution should not be imposed by brute force as a substitute for justice. The principles of justice are, by definition, the only principles that may legitimately be imposed by violence.
A criminal has the same basic rights as anybody else. He does not gain or lose any rights by committing a crime. Because a thief does not gain any rights by stealing, it is OK to take back what a thief has stolen, whether the thief agrees or not. But, because a thief does not lose any rights by stealing, if you want to do more than take back what was stolen, if you want to punish the thief or make him pay, you must restrict your actions to those that you have a right to do to anybody. No matter how much you think the criminal deserves to suffer, you have no right to directly harm him or his property without his permission, except to stop his crime.
With a little ingenuity and effort, 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.
If a thief loses or destroys property that he stole, he cannot possibly return it. Justice cannot be achieved in such cases. I think it would be fair to take some of the thief's property and give it to the victim as compensation, but it would be unjust to do this without the thief's consent.
If you have an insurance policy you can get compensation from your insurance company. So, it is possible for the market to provide some compensation beyond mere repossession, without having to coerce criminals more than is allowed by the non-aggression principle.
Nature is not fair. It does not allow a murderer to restore his victim's life. A murderer cannot possibly make reparation to the victim. He should try to compensate the victim's family. It would be extremely unfair if he refused to offer any reparation, but he has the right to refuse, which means no one may force him to pay for his crime. The same goes for many other serious crimes. Rape, for example, is a crime for which reparation is impossible. It was not fair of nature to make reparation impossible in the most serious crimes. It is also not fair that my system of justice allows criminals to refuse to compensate their victims.
Justice deals with specific rights. It gives us the authority to demand what belongs to us. But justice must be exact. Reparation and punishment cannot be determined by principles of justice—by appeals to rights. Reparation and punishment are concerned with fairness rather than justice. Therefore, they must be agreed to voluntarily according to whatever principles of fairness the parties share.
Justice is not the only kind of morality, but it is the primary kind, and it should not be bypassed. The only way for morality to make sense is to allow people to make moral decisions. For this they need the freedom allowed by the non-aggression principle.
Fairness fosters cooperation and concern for the individual. It has helped us to survive as a social species. But the morality of fairness is lost when it overrides justice. Forced reparation and punishment deny the individual's right to govern himself.
The non-aggression principle is essential for morality because it allows everyone to make moral decisions. So the non-aggression principle, not fairness, must set the limits to the use violence.
Roy Halliday is a proud alumnus of Grove City College (class of ‘67), which, to preserve its independence, refuses to accept any funds from the Federal government. Retired last year from a career as a professional editor, he now serves FNF as copy editor for Formulations.
1I do not regard tortfeasors as criminals, because tortfeasors do not intentionally invade anyone's rights. Nonetheless, in some emergency situations I regard it as legitimate to use violence in self-defense against a tortfeasor. Consequently, I cannot strictly claim to be opposed to the use of violence against non-criminals. Logically, there is room for another category of self-defense libertarians who regard it as legitimate to use violence in self-defense against criminals but not tortfeasors. However, since I know of no one who holds this view, I omit it from my classification scheme.
2In "Punishment vs. Restitution" (Formulations Vol. I, No. 2), Roderick Long makes a case against punishment and a case for restitution. He argues that restitution is a form of self-defense and that forcing criminals and tortfeasors to compensate their victims is not a violation of the non-aggression principle. For a longer description of the reparation theory and its advantages see "Restitution: A New Paradigm of Criminal Justice" by Randy E. Barnett in Assessing the Criminal: Restitution, Retribution, and the Legal Process.
3Another position that someone could advocate is that it is legitimate to force criminals but not tortfeasors to compensate their victims. But, since I don't know of anyone who holds this position, I omit it from my classification scheme.
4For an analysis of the punishment problem as a rationale for the State, see the sidebar on Ayn Rand or read my article "The State As Penalizer" in Formulations Vol. III, No. 4.
5Roderick Long, "One Nation, Two Systems: The Doughnut Model" in Formulations Vol. III, No. 4.
6"The Anticrime Industry in a Free Nation" Formulations Vol. IV, No. 1.