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Crime

From The Austrian Economics Wiki, the global repository of classical-liberal thought

Crime in the Austrian and libertarian tradition is an invasion of person or property, which is not the same as a violation of statute. The two definitions overlap for murder and theft and come apart everywhere else, and most of the interesting questions about crime are questions about where they come apart and which one should govern.

Natural and positive law

Natural law theories hold that what constitutes a crime follows from the nature of man and what his life requires. Positive law theories hold that a crime is whatever the statute says it is.

Even positive law rests in the end on some claim of the first kind. A legal positivist arguing against a natural law theorist will typically say that if each person acted on his own judgement of what is right rather than deferring to statute, an intolerable disorder would follow. That is itself an appeal to a claim about human beings and the world: that deference to statute produces better outcomes, by some standard of better, than the alternative. The appeal to consequences does not escape the appeal to nature, it relocates it.

Cato's Letters put the older version of the argument plainly, holding that positive laws take their legitimacy from the law of nature, so that violating a bad law is not a crime while violating what ought to be law is a crime even where no law exists. They add that there were crimes before there were laws to punish them, which deserved punishment by the person affected or by the society.[1]

The awkward consequence for the statutory definition is that it makes the lawfulness of state action unaskable. Frédéric Bastiat pressed the point: if an individual may not lawfully use force against the person, liberty or property of another, then the common force cannot lawfully be used to destroy the person, liberty or property of individuals or groups, since it is nothing but the individuals' own force pooled.[2] Murray N. Rothbard drew the conclusion without softening it, describing the state as nothing more nor less than a bandit gang writ large.[3]

Crimes without victims

The practical work the distinction does is on conduct that is statutorily criminal and involves no invasion of anybody. Drug possession, gambling, prostitution and unlicensed trade are crimes in the positive sense and not in the natural one.

Three consequences follow, and they are economic rather than moral. Prohibiting a trade does not end it but moves it to a black market, where the price carries a risk premium and the supplier is selected for willingness to break the law. Disputes in that market cannot be taken to a court, so they are settled by violence, and the violence is then counted as evidence that the trade is dangerous. And enforcement resources are finite, so every officer assigned to a victimless offence is one not assigned to an invasive one. See victimless crime and drug prohibition.

Punishment, proportionality and restitution

Rothbard held that disproportionately severe responses to crime are themselves unjust, and that the criterion of proportion is not a sentiment but a limit derived from the same property theory that identifies the crime.[4] The Tannehills made the practical case in The Market for Liberty: an aggressor treated with excessive severity feels victimised, sees little justice in his punishment, and forms a resolve to get even, so that excessive severity provokes further aggression much as excessive laxity does.[5]

The distinctive proposal in this tradition is that the injured party, rather than the state, is the one owed something. A criminal law organised around restitution asks what the offender owes the victim; one organised around retribution asks what the offender owes the sovereign, and the victim becomes a witness in someone else's case. The restitution model is what makes private prosecution and private dispute resolution coherent, since a claimant with a claim can pursue it whether or not a public prosecutor is interested.

Laurent Carnis argued that the classical economic school of crime, which models the offender as maximising expected utility against a probability of punishment, imports the same aggregative apparatus Austrians reject elsewhere, and cannot do what it claims because the relevant valuations are neither observable nor comparable.[6]

Unequal enforcement

A law that is neutral on its face is not neutral in effect if the conduct it forbids is unevenly distributed, and the discretion involved in enforcing it gives officials a margin that is hard to audit. American federal sentencing long treated distribution of crack cocaine far more severely than distribution of the pharmacologically similar powder form, and the laws against employing unauthorised immigrants fall hardest on households rather than on firms with compliance departments.[7]

This is not an argument that such laws are enforced in bad faith, and it does not depend on one. It is the general point that the more conduct a statute criminalises, the more occasions there are on which someone must decide whom to charge, and selection effects do the rest.

See also

References

  1. ↑ John Trenchard and Thomas Gordon. Cato's Letters, No. 11 (1721) and No. 42 (1721).
  2. ↑ Frédéric Bastiat. The Law, 1850, "What Is Law?".
  3. ↑ Murray N. Rothbard. Anatomy of the State, "What the State Is".
  4. ↑ Murray N. Rothbard. The Ethics of Liberty, 1982, ch. 13, "Punishment and Proportionality".
  5. ↑ Morris and Linda Tannehill. The Market for Liberty, 1970, "Rectification of Injustice", p. 107.
  6. ↑ Laurent Carnis. "Pitfalls of the Classical School of Crime", The Quarterly Journal of Austrian Economics 7:4, 2004, pp. 7-17.
  7. ↑ Sarah McCarthy. "A Very High Hurdle", Liberty, March 2001.
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