My favorite right-brained anarchist, Cat Farmer, received the following question from one of her readers, and invited me to respond since my anarchism is very left-brained. My response is addressed to her, rather than directly to the person who wrote to her.
bkMarcus
Hi bk,
A friend asks this question... he is sharp as a whip, and it's not an easy one to answer. Of course, I will do my best, but I'm wondering if perhaps you have addressed this sort of problem on Black Crayon or elsewhere?
Question:
Do "we the people" have a collective right to lock up serial arsonists?
I choose this particular crime example because even a well-armed populace can't realistically defend against someone who slinks around in the shadows with gasoline and matches, as we might, say, a serial rapist or robber.
What is the anarchist alternative to a collectively sanctioned prison system for housing serial arsonists or serial snipers, once they are caught?
All I can come up with is good old-fashioned vigilante justice, which, it seems to me, would effectively place the burden of proof on the accused.
It's one of those problems that has several "parts" to it, and I could spend all day trying to dissect it and address the various parts, but this sort of argument is not my strong suit. Any pointers you can offer would be appreciated...
I see the question as having two main parts:
The moral question itself breaks down into two parts:
So let's start with question 1a. Are there collective rights?
According to the collectivists -- left anarchists, state socialists, social democrats, and conservatives -- there not only is such a thing as "we the people" but a variety of collective sub-entities, such as "we the workers" and "they the capitalists", or "woman-kind" or "Christendom" or "the Negro race" etc.
The libertarianism of the Anglo-American tradition is individualist, both in methodology and in moral philosophy. We only recognize individuals as moral agents, and therefore only individuals as bearers of rights and responsibilities. The arsonist hasn't wronged a theoretical entity called "society" but has wronged only property-owner-A, property-owner-B, property-owner-C, etc.
Collective nouns such as 'society' and 'class' and even 'we' are linguistic conveniences, and not actual over-persons who can choose to act independently of their individual members. They therefore cannot be aggressed against, except through aggression to their individual members and have no collective rights, but only the collection of individual rights of those individuals considered to be part of the particular group or class.
Since question 1b depends on a positive answer to question 1a, it is moot. If anyone has the right to lock up an arsonist, it is the arsonist's victim or victims.
A paranthetical note on the ambiguity of libertarian vocabulary.
According to the Natural Law libertarians, following the example of Lysander Spooner, a "crime" is a violation of an individual's natural rights. By this definition, most so-called crimes are not crimes at all, but merely the artifacts of government legislation, e.g., (my favorite triad) pot, pornography, prostitution. Only the initiation of force or of fraud can be considered a crime under Natural Law.
Other libertarians -- whether they subscribe to Natural Law theory or not -- are willing to cede the term 'crime' to the Statists, and rely instead on the distinction in modern law between a crime and a tort. A tort is a concept of civil law: a wrong against an individual; whereas a crime is a concept of criminal law: a wrong against "society".
This distinction comes to us from the royal courts of the post-Norman-Invasion kings of England and later Britain. Before the Normans, Anglo-Saxon (voluntary, customary, decentralized and non-Statist) law recognized only torts. The aggressor owed restitution to his victim. Under the new kings, the aggressor first owed restitution to the king -- and only after the king took "his" could the individual victims make claims for their own restitution. This tradition continues in the U.S., where criminal trials must precede civil trials for the same wrongs committed.
During the transition from customary law to royal law, the victims of torts so preferred the Anglo-Saxon system, that the king had to outlaw the customary courts and make it a crime for victims not to report their aggressors to the king's courts. Once victims lost any real chance for economic restitution (since the king had usually already taken whatever the aggressor had to take), the victims started calling for physical punishment, such as torture, imprisonment and execution.
So one way to describe the libertarian position is that we recognize only crimes against Natural Law, while a very different way is to say that we recognize no crimes, but only torts. Either way, we advocate a (preferably private) version of the civil court system, while rejecting the Statist criminal court system completely.
Question 2, then, is the question of how a libertarian society might organize to handle serial aggressors. Or, put differently: How might the free market respond to the demand for justice?
My emphasis, for several years, has been on moral philosophy and ethics. I have seen the request for specific solutions to specific problems as missing most of the point of free-market advocacy, which is that a free market would offer an open system of competition for different strategies to address certain problems. (C.f., my email to you on the term 'diversitarian'.) If we could predict which strategies would work best, we'd be central-planners, not libertarians. Socialists have the hubris to think they (or some expert) can know the correct plans for the rest of us. Libertarians, in contrast, have the humility to know that we don't have all the answers to all the practical problems that come up when individuals interact. But because we believe that we don't know all the answers, we (all of us) should therefore be free to pursue a diversity of peaceful solutions (where by "peaceful" I mean solutions that do not involve the initiation of force).
That is my habitual answer, and I find that it falls flat for people who are used to single-solution thinking. I want to undo the question, but they won't let the question go.
So, since the frontal assault on the single-solution belief system has failed me so miserably, I've taken up the study of economics. I am now a practical supporter of the free market, and not just an ethical libertarian.
But rather than try to summarize in email the reading I've been doing on the question of non-Statist law, I will instead point to some online articles and some offline books.
Under the category of polycentric law on the BlackCrayon links page, I point to the following portal: Against Politics: Polycentric Law.
In addition to Bruce Benson's book, The Enterprise of Law: Justice without the State, which I am reading now, I will be reading two books on the subject by David Friedman: The Machinery of Freedom: A Guide to Radical Capitalism and Law's Order: What Economics Has to Do with Law and Why It Matters. For a light, science-fictional treatment of the question, I recommend Ken MacLeod's Stone Canal, which I also review at BlackCrayon.com. (MacLeod says elsewhere that the private court system in his novel is based on Friedman's Machinery of Freedom.)
Online essays I link to from BlackCrayon include Privately Produced Law, which is a good brief introduction to both the history and possible future of private law, and Friedman's Police, Courts, and Laws On The Market, which suggests that private protection agencies and insurance companies would provide more efficient and less expensive protection against arsonists, rapists, burglars, murderers, etc.
Chapter 12 of Murray Rothbard's Libertarian Manifesto was my real introduction to the subject, but I think better work has been done since it was written.
If your friend doesn't want to follow those links or read any of those books, you might just ask the following question: What if an individual victim's right to restitution were treated as a property right? What if arson-victim-A and -B, are insured by different protection agencies, while victim-C isn't even insured? If I were the victim of arson, I'd be willing to sell the right-to-restitution to the highest bidder now rather than wait to find, detain, and sue the arsonist later. (Time preference plus risk reduction, to speak in the economic model.) Both A's and B's insurance companies will already have an interest in stopping the arsonist, which incentive can be increased by acquiring the rights to restitution of other victims or their agents. Ethically, the victims have the right to both reactive and defensive coercion against the aggressor, and legally, the private protection agency can have acquired those rights.
But for further details and particulars, your friend will have to read some of the books and articles I point to above.
Hope this helped.
-- laissez faire, bk --------------------------- http://www.BlackCrayon.com/ ---------------------------