Is government necessary to provide law and order? How does thinking about the law in economic terms—as a good or service like any other—change how we think about the law? Could you really think of those under the protection of law enforcement as “customers”?
How did the law as we know it today—a system of rules and courts provided by the government—come about? How are incentives aligned in our current legal system?
Trevor Burrus: Welcome to Free Thoughts from Libertarianism.org and The Cato Institute. I’m Trevor Burrus, a research fellow at The Cato Institute’s Center for Constitutional Studies.
Aaron Ross Powell: I’m Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at The Cato Institute.
Trevor Burrus: Joining us is Bruce L. Benson, DeVoe L. Moore Professor and Distinguished Research Professor at Florida State University and courtesy Professor of Law at Florida State University College of Law. Welcome to Free Thoughts, Bruce.
Bruce Benson: Thank you.
Trevor Burrus: Your book The Enterprise of Law strikes many I would say as probably quite radical. You question whether or not government is even needed to provide so‐called law and order and to use the quote in the beginning of the book, you say economic – you used economic theory to compare institutions and incentives that influence public and private performance in the provision of law and its enforcement. How does economics help us think about law and its enforcement?
Bruce Benson: Well, of course first of all, law and enforcement involves the use of scarce resources, which means they have to be allocated. In economics studies, the allocation of scarce resources. The allocation process isn’t through markets of course. Unless we talk about bribery and things like that, then we get a market kind of process working.
But nonetheless, we can look at the institutional environment and think about the incentives that individuals have who are in a position to make these allocation decisions. So really it’s in a sense the economic model of behavior. As in public choice theory for instance, being taken to the public sector in general and to the legal system itself in particular.
Aaron Ross Powell: So all of us are fairly used to state provision of law and law enforcement. It’s the system we live within and while we know that – we deal with private security guards occasionally and may have heard about arbitration between parties as opposed to taking disputes to court. For the most part, we just kind of think of state‐provided law and law enforcement as the way things work.
But in the introduction to your book, you make a point of saying that – typically we think a market – one of the things a market does is provides what the customers want and you contrast this with state‐provided law in saying that it – in many ways, it fails to provide what people would want, what we might expect in the market. So what are some of the ways that state law or authoritarian law, as you referred to it, doesn’t live up to what the customers desire?
Bruce Benson: Well, I guess we can look at what’s going on today in places like Baltimore and Cleveland and places – Ferguson, Missouri I guess where we’ve seen significant abuses of power by the police as one example of the public sector not doing what we want it to do. The – we can see instances, in fact significant instances, where prosecutors decide to drop charges against some individual or decide to plea bargain down to some lower kind of charge and so the victim of the crime really doesn’t even get the satisfaction of having the criminal effectively punished if that’s what the function of the process is.
In terms of legislation, we see all sorts of laws created that actually are not about protecting us from bad things but are in fact about protecting certain privilege groups from competition or protecting their privileges and so on. So the – I just read in the paper this morning about the two young girls trying to set up their lemonade stand and the police came and shut them down because they didn’t have a proper license. Is that the kind of thing we want our legal system to be doing? I don’t think most of us do.
Aaron Ross Powell: I was struck when reading your examples of how the legal system fails to provide what we want because reading it from a libertarian perspective and also being very aware of what’s going on in Ferguson and in Baltimore and the story of the girls’ lemonade stand being shut down and then these stories of – there’s the one just earlier this week about the 11‐year‐old who was playing alone in his yard for an hour and the parents were arrested and charged with neglect I believe and he was sent to child protective services.
I guess I had two reactions. I want to see if I’m maybe misreading where – for one I would say that – I mean we know like if you poll parents, you poll people about, “Should children be allowed to play outside?” a shockingly large percent if not the majority I believe think no. Like kids under – kids of an age who used to play outside all the time should not and it may be driven by kind of the panic attacks people have now about how dangerous they imagine the world has become.
At the same time, a lot of the rules that you – or a lot of the things where you say the law doesn’t give what people want tend to be – you say people want harsher sentences than the law currently provides or that is enforced that the plea bargaining leads to us basically going easier on criminals than we otherwise might or the market demands.
But to me from especially – I mean from a libertarian perspective, those seem like features, not bugs, that if …
Trevor Burrus: Going easy on drug criminals seems like a good thing.
Aaron Ross Powell: Right. If the state is going easier than kind of the vindictiveness that Americans want, I guess I would be kind of hesitant to institute a market that would be as vindictive as the voter wants.
Bruce Benson: Well, you’re missing the point I guess. My point is that we don’t like many of these things that are coming out of the system. A different system is going to produce different outcomes. You’re not going to have plea bargaining between a public prosecutor and a criminal or the criminal’s lawyer in a privatized system. It will be bargaining perhaps but between the victim and the offender.
So you have some perhaps bargaining, perhaps arbitration, perhaps meditation and the acceptance of the bargain is then not up to some public prosecutor but it’s up to the victim himself. What will satisfy the victim? Prior to the rise of criminal law, the kinds of things we think of as crimes today were illegal but they were illegal in a system of civil liability.
Trevor Burrus: Now someone here thinking – when you’re saying state‐provided law or publicly‐provided law, someone’s first thought is going to be, “Well, that’s the only choice. Anything else is not meaningfully law.” The idea that there’s private‐provided law is just – seems kind of silly to many people.
But in your book, you’ve explained how this is an erroneous concept that – we hadn’t always had state‐provided law in this way in that story. So how is that – how did that use to be the case that we didn’t always have publicly‐provided law?
Bruce Benson: When people say the state has to provide law, they’re defining law as rules provided by the state. So it’s a tautology. If we want to think of rules as the behavior that other people expect us to adopt in various kinds of interaction, then those rules come from lots of places and in fact most of the rules we follow in our day to day life are not rules generated by the state.
The state may have at some point written them down but they were developed through communities, individuals interacting, contracting, developing various sorts of mutual insurance arrangements, mutual assistance arrangements, all sorts of system – other sources of law. You might – if you don’t like the term “law,” you can call them norms. [0:10:00] I call them customary law because I think that gets at the idea of – the argument I make is one, that it’s not at all shocking to – say an anthropologist. That law comes from different places.
Law can be imposed from the top down which anthropologists will refer to as authoritarian law or it can come from the bottom up through various forms of voluntary interaction and that’s – they call it customary law.
The customs that individuals adopt within their communities are very powerful in many situations and the – if we go back in history, you go to say a number of tribal societies. You find systems where there is no legislation. There is no central authority to enforce rules.
Nonetheless, these people get along. They interact. They trade. They enter into joint production and all sorts of things because they know how each other is – or they at least have expectations about how each other is going to behave in these situations. So there are rules.
Aaron Ross Powell: A lot of these rules that you’re describing, these customers rules, are things that we have experienced with today, everything from – we know that you’re supposed to – at least in the United States, you get in line for something. You queue up and that’s the proper way to handle it and if you cut in line, people get upset with you or look at you …
Trevor Burrus: You don’t double dip chips either.
Aaron Ross Powell: Yeah. We have this kind of rules and we know just behaviors that are appropriate or not. So thinking about those or thinking about stuff on the margin about to hire a security guard to protect your factory as opposed to a cop, we get all that. But I think where – what you’re describing in where the absence of state‐provided law and enforcement seems particularly weird in where I’m – I guess I’m asking if you could expand on how it worked before, how things worked before the rise of the state. Those things that like – the really hard laws, right? The ones like against murder, against outright theft. The things where we don’t – it doesn’t feel right that the way you handle those is to give the person the stink eye or refuse to associate with them. We want some sort of like real enforcement there.
Trevor Burrus: Or a blood feud or something along those lines.
Aaron Ross Powell: But blood feud sounds pretty bad.
Trevor Burrus: Yes.
Aaron Ross Powell: And so how do you – how did those kinds of issues get settled without a centralized authority?
Bruce Benson: Well, let’s just – since we’re a common law country, let’s go back to England. Prior to the development of what we might call royal law, law of the kings, and think about how those kinds of situations were dealt with. There was a custom, a view that every individual, free individual had what was referred to as a piece.
Essentially, the individual had property rights. They had property rights to their homes, perhaps to farm land, to the cattle and horses and sheep that they had and so on. The expectation was that everyone would respect each other’s piece. Well, some people don’t respect the law. They certainly don’t today and they didn’t then.
So how did they deal with them? Well, the typical community of free men would form sort of mutual insurance arrangements, reciprocity kinds of things. They called them the “tithing” and the “hundred” or that’s at least what historians have named them and the idea was that they would cooperate in various activities. If cattle strayed off, the individual could call on his neighbors, the tithing to go help and find them.
If he was robbed, he could call on his neighbors to go pursue the robber. They had obligations to maintain the road network or network of paths within the community. So a path crosses somebody’s property, they were supposed to keep it clean, so other people could use them.
This was all built on frequent interaction and reciprocity among these individuals. Now, the – if there was a dispute as to whether they caught the right bad man, the right robber, there was also a court system that worked at the hundred level. There was a court but it was not a court backed by the king or something like that. It was representatives of each tithing would act essentially as a judge and jury and they would decide on guilt or innocence.
If there was a finding of guilt, then the expectation was that the offender would pay restitution to the plaintiff. So if someone was robbed, the court would come up with an appropriate restitution. In fact, it was a pretty common understanding about what the payments would be for various kinds of offenses, depending on the situations and so on.
Trevor Burrus: So how did they enforce that though? How did they make sure that you paid?
Bruce Benson: Well, first of all, of course if the individual couldn’t pay, they would – they had alternatives. For instance, these were mutual insurance arrangements. So, one community, if a member of that community owed restitution to somebody, they might pay the restitution for the individual and then the individual would owe his own neighbors and friends.
If the individual refused to accept the court’s judgment, the individual would be declared an outlaw. Essentially word would spread that this individual is outside the law, no longer protected by his own community and essentially he’s free game. His property could be taken and so on.
That might sound harsh but of course the police are seizing assets today from people who haven’t done anything but maybe violated traffic law. So the outlaw – well, it might sound trivial today. It was a significant thing back then because you had to have protection from – within your community in order to survive in that environment. If you were an outsider, you did not go into another community without being voluntarily accepted by that other community.
Trevor Burrus: Now the point that you make in the book – many points. But the point that – about restitution is incredibly powerful and something a lot of people haven’t thought about. I point it out to people that isn’t it strange that if I get into a fender bender with someone, me or my insurance company pays them. But if I punch someone in a bar or someone punches me, they pay the state and that’s supposedly a crime of which the victim receives nothing.
That is kind of a head‐scratcher. It’s so common. Oh, a crime is – the people versus, the king versus. It’s so common that we don’t even think about that it’s really strange. How did it come to be that you’re paying the state when you committed crimes against people?
Bruce Benson: Well, let me say first of all, it came about slowly, gradually and not without substantial resistance. [0:20:00] The system of hundreds and tithing in the restitution system referred too often as the “man price system” was essentially universal in these communities and they – the system included everyone, the wealthy, the powerful, the poorest farmer and so on.
So the king of course – kings arose in England not to establish and enforce law but to fight wars. They were typically war chiefs who ultimately were able to claim some sort of divine right or some sort of authority that would allow them to lead armies and that sort of thing.
But then of course they needed funding to maintain or be active in the wars. So they start looking for ways to fund their operations. The king’s primary source of income, the early kings, was essentially the produce from their various estates. They had lots of different estates around the country and they traveled from one to another and consumed what was produced there. They didn’t have much in the way of money coming in that was liquid, that could be used to buy other things.
So they’re looking for ways to get money. Well, one avenue was the king’s piece. Everyone had a piece. The king had a piece too. But the king has power in that he has military forces and so on and the support of other powerful individuals. So he started expanding the king’s piece.
Trevor Burrus: Was the king’s piece geographically assigned or was it …
Bruce Benson: No, jurisdictionally. For instance he would declare that a foreign traveler in the kingdom would not have the protection of a local tithing or hundred. So if that individual was attacked, the king would step in and pursue justice.
But it was a pursuit of justice in the sense that the king got the compensation, not the traveler. So you lose that link between punishment and restitution and it becomes punishment with no restitution to the victim.
Of course most traveling groups and – especially the merchants and the churches and so on travel with the protection anyway. So this isn’t a big deal. It sounds like a good thing. It sounds like, well, the king is stepping in to protect people who are traveling, and that’s a good thing.
So some minor sorts of changes like that start occurring. The king declares that his piece extends to the major holiday periods. So any offense committed during a certain holiday period is an offense against the king and the money goes to the king. The restitution payment or compensation payment goes to the king.
After the Normans invaded much more powerful kings, within a century or so, you start seeing a distinction between crime – criminal law and civil law that hadn’t existed before. The distinction essentially was with criminal law, the king gets money. With civil law, the victim gets the money and the king is constantly expanding his jurisdiction, his piece to sweep in more and more opportunities to collect money. Law enforcement was a revenue generator for the king initially and that made it very attractive.
Aaron Ross Powell: It still is. I mean that’s what – that was what was striking about reading this is that it – it was one of those kinds of “aha” that makes so much sense now, the sorts of moments – I mean because we – one of the things that came out in the aftermath of the Ferguson situation was the enormous percentage of the city’s budget that came from these fines that they were levying on their citizens. They kept just jacking up the fines and jacking up the number of things you could be fined for.
Trevor Burrus: It was like 60 percent of the municipal budget.
Aaron Ross Powell: Right. So they had – every incentive was for them to just harass and find their citizens and see them not as people that they ought to protect but as a source of revenue.
Bruce Benson: Yeah. And people just don’t realize how important this has become. In the area of drug enforcement for instance, the – since the early 1980s, we’ve seen lots of changes in asset seizure laws that allow civil seizures. All they have to do is suspect that someone has committed a crime or that they purchased some asset with the proceeds from a crime and the police can seize that property.
There are lots of police agencies around the country that – whose budget is – a substantial part of their budget comes from seizing assets from people who haven’t even been arrested or charged and so you got these fines, asset seizures, all sorts of activities that are generating revenues for the government or for the policing agency or something like that.
Trevor Burrus: Someone is probably thinking right now – pushing back. OK. So criminal law is developed as a money‐making scheme for kings in the state. But at the same time, if we don’t assume that kings are entirely nefarious people, which may be a bad assumption, but if we don’t think they’re entirely nefarious, maybe they said, well, crime is not being prevented well enough by this system of restitution and private provision of security.
So one thing I need to do for my subjects as a good and decent king like King Richard and Robin Hood or something like that is to give them protection and step in to help out the people who don’t have enough money to pay for their security firm or that are not being assisted by the community. Yeah, I will take some money from the people to help me do that better because that costs resources.
But overall, it’s a better system to prevent and protect people via this criminal law rather than the restitution system before. So it’s actually a positive evolution forward of the state taking over something that it should be taking over in the first place.
Bruce Benson: Well, that’s a good story. Unfortunately it’s false. The kings did not take over the policing function or the protection function. They just took over the collection function I guess you might say. The kings relied on the local voluntary policing arrangements to collect their own fines. In fact, they – as the king took more and more of the money, shifted it out of restitution into essentially fines, the local communities resisted. They didn’t want to take people to court to try to collect restitution because they weren’t going to get restitution anymore. They were going to get money for the king.
So they would try to avoid that through direct bargaining for instance with the offender and various things like that. It also creates incentives to use violence against the offender rather than actually trying to get a peaceful settlement.
So you get a period as the kings are trying to expand their jurisdiction but still have the local communities do the policing where you get a lot of resistance and so there’s a sort of give and take through – over a century when [0:30:00] the kings would demand more and more of the money and the local communities would just quit doing their policing stuff and so the king would have to back off some and let them collect some restitution. So they would start doing their policing stuff again.
Ultimately, the system of tithing and hundred broke down. The policing function just – there was no policing and so then the king – this was after the Norman invasion – created what was called the Frankpledge System, which essentially ordered these communities to do policing in order to collect the revenues for the king without compensation. So you get an effort to use force to force people to pursue criminals when previously they had done so voluntarily because of reciprocities and the recognition that they were helping neighbors who would later help them and that sort of thing.
Trevor Burrus: Yeah, you mentioned that. In the book you mentioned that they even made it illegal to go outside of the system to solve the crime by restitution, the situation by yourself in order to put – I think at one point you mentioned to put ads in the paper, just asking for the return of stolen property, no questions asked. They made those illegal because they wanted to collect fines. It was fascinating.
Bruce Benson: Yeah. So you have a long series of laws trying to force the local communities to do the policing functions. The – as we move through time, the king starts creating local officials, justices of the peace for instance who would be ordered to organize the policing and see that offenders get taken to court and that sort of thing. They were ordered to do so without compensation as well. The king didn’t want to spend money on law enforcement. They just wanted to collect revenues from law enforcement. So harsh punishment – actually I read – I can’t remember where – what historian wrote about this system where essentially every community in England that one time or another was fined for failing to do its policing duties.
Some of these places and some of these individuals would rather pay the fine than do the policing stuff. But then you also start seeing organizations, private organizations that joined together to take on some of these functions that the king was trying to do in a relatively efficient way. So for instance, there were organizations where – oh, I forgot to mention. The victim wasn’t expected to prosecute. So the victim was ordered to bring witnesses to trial and pursue charges against the offender even though the victim was not going to be compensated.
So the victim was not only – no longer getting restitution but he was expected to have – bear more cost in order to collect the money for the king. This of course led to people demanding some sort of restitution or retribution if they couldn’t get restitution. So, you start seeing increasing levels of really nasty sorts of punishment, capital punishment being an obvious one. But all these stories about people being put on the rack and things like that start coming into play after the king takes over the process because the people themselves are not being satisfied with the system.
But anyway, the arrangements would oftentimes – depending on if it was a business group for instance. They might hire private security type individuals who would then pursue criminals and bring them to justice. The king never really stepped in until – into the – there’s a period where there’s – punishments are getting so harsh for trivial kinds of crimes, that the people in the country in general didn’t want to impose those punishments.
But the only alternative to punishment, physical punishment, was to convict the individual for relatively – a really minor crime and then they were branded as criminals. The juries then were nullifying royal law by refusing to hang people for minor cases of theft and things like that and simply branding them as thieves and letting them loose. Those were the choices essentially and so there was demand to do something about this and demand to come up with ways of dealing with these criminals that were somewhere in between capital punishment and branding.
The king started transporting criminals then to the colonies in the Americas and in African places like that. Even then of course the king wasn’t spending any money. He franchised a particular firm to do the transporting and the firm got its money by selling indentured servants – contracts to the colonials when they transported these criminals over to them.
So anyway, you start seeing a new development, transportation as a replacement for capital punishment. And then transportation gets cut off with the American Revolution and so they put these so‐called hulks in the Thames River. These big dead ships essentially would sit there and they would put more and more of these criminals onto these ships, waiting for transportation to start up again and it didn’t of course.
At that point, they start – the king ultimately has to start paying something to get rid of these criminals. It was very expensive but they transported a lot of them to Australia. Finally, you start getting prisons built to house these individuals and you see a shift from the criminal process being a money generator for the king in the central government to a system where it’s increasingly costly in that – that’s what we see today of course is a system that’s extremely costly to the government. It’s still as you say a revenue‐generating system. But the revenues are being generated for local communities and local police departments and things like that whereas taxpayers are paying huge amounts for prisons and so on.
Aaron Ross Powell: I wanted to talk a bit about the really fascinating analysis you give in the book of the incentives that exist within the legal system that we have today and how those caused problems, specifically in the legislative process and then among judges and then among the police. But I did have a quick question before we move on to that. The story you’ve told so far has been about England and then America. Can we tell a similar story about other parts of the world? Because after all, other parts of the world have the same sort of authoritarian, state‐driven law that we have in the West.
Bruce Benson: Well, certainly. We got our law from England. So did Australia and Canada and South Africa and so on. So the background for the development of the law [0:40:00] was the same for all of those countries. Other European countries had similar processes as kings became more and more powerful.
I have not taken a deep look at say Asian societies and that sort of thing. So I can’t be – strongly affirm that. But on the other hand, something like the tithing and the hundred has existed – has developed essentially everywhere. It really was an institutional arrangement that was – that evolved out of tribal arrangements and so those tribal arrangements, you find the same sorts of things in New Guinea and the Philippines where you’re still finding these tribes.
So you certainly can find lots of hints that the same processes have occurred and pretty strong hints in places. I honestly can’t say whether the same story tracks in China for instance although I suspect it does.
Aaron Ross Powell: Well, then let’s turn to that analysis of – so that – basically it’s a public choice analysis of our modern legal system. Let’s start with the – I guess the lawmaking process. I mean one of the things that you point out is that when the state is the one making laws, when you have the centralized authority, you end up with different interest groups operating, who each may have their own goals that work across purposes.
One of the I think really interesting things was that we end up as a result often with far more laws than we ought to have because incentives exist to create more and more and more laws and then also those laws have a focus that often doesn’t make a lot of sense from the perspective of what we really ought to have or really want to have. Can you tell us a bit about why that happens, how that happens?
Bruce Benson: Think about the example I just discussed about the king’s creation of criminal law over time. When they tried to force the local communities to do the policing, the local communities resisted. So they’re creating – they’re passing laws that say local community do this policing activity and the local community is refusing. So they pass more laws trying to force them to do these duties and threaten them with fines if they don’t and so on.
So you see a growing set of rules attempting to force a community to do something it doesn’t want to do. The same sort of thing happens all the time when – when we think of customary law evolving from the bottom up, it essentially means the community as a whole is agreeing voluntarily to accept these rules. They’re not going to voluntarily accept rules that discriminate against them. So they tend to be fair, unbiased kinds of rules that come out of these systems. There are some bizarre rules that come out of them too, oftentimes in primitive societies because they don’t understand various things and so on.
They create some rule to do something they think will help. But those rules don’t have any effect. On the other hand when the state creates a rule that says you got to do something, the individuals who are targeted by that rule don’t want to do what the state says. So they find ways to avoid it and the legislature can never anticipate all the kinds of adjustments people are going to make. People are pretty entrepreneurial in finding ways around the law.
So you get a method of bypassing or circumventing the law created by the state. So they have to create another law to block that and then they have to have more police and so on. I always tell my students about the 55‐mile‐an‐hour speed limit that was passed back in the 70s.
The police of course had these – well, individuals first of all – truckers all had CB radios and so they call each other and warn them about police stings and traffic stops and things like that. So they would avoid these speed limits. They would drive over the speed limit and avoid being ticketed.
So they had to have – tried to create some rules about what you can do with the CB radios. They then developed radar guns to detect speeders some distance down the road. But then of course the private sector comes up with a radar detector which could be installed in cars. So the state had to make those illegal in order to use their enforcement methods.
So you just get this spiraling process of more and more laws, trying to force people to do things they don’t want to do.
Trevor Burrus: I think a good analogy to the kind of laws that come from customary norms versus the ones that are imposed from the top down is an informal pick‐up baseball game that kids play in the backyard versus the formal Little League system. When you have the informal pick‐up baseball game, everyone kind of has to respect everyone else because you’re trying to make everyone happy and people – you don’t want people to go home because the rules are not working for them.
So you have – you adjust the rules on the fly and you have this kind of emergent system trying to make everyone happy and have everyone having a good time. In the Little League, it’s not that way. You sort of debate the rules applying everyone from the top down and trying – have a different goal in that kind of authoritarian order and a lot of times, the kids don’t enjoy it as much as just the pick‐up baseball in the backyard.
Bruce Benson: Yeah, that’s a good analogy.
Aaron Ross Powell: I believe that’s from Steve Horowitz.
Trevor Burrus: It’s from Steve – yeah …
Aaron Ross Powell: Just to give credit where credit is due.
Trevor Burrus: And Peter Gray is a guy who wrote an essay on that, which we can link in the show notes, which I think is a good analogy. I think the story is really fascinating and there’s so much in the book more than we’ve even touched on.
Someone is thinking, “What is the relevance?” We talked about Ferguson. We talked about various problems but the story of a primitive past using a primitive legal system and then evolving forward and now this doesn’t apply. We don’t live in small towns or small tribes where we have reputation. It’s a huge thing and reciprocity. We have much bigger areas. So are we saying this was better and we should go back to not having state law now? Does this even apply anymore? What are the lessons that we can learn from the development of authoritarian law and how can we apply them now?
Bruce Benson: Well, I – personally, I wouldn’t want to live in Papua New Guinea, in one of those tribal societies that still have predominantly private law.
Trevor Burrus: Or blood feuds. I mean isn’t authoritarian law better than blood feuds?
Bruce Benson: Well, see, a – Francesco Parisi I think his name is. He wrote a very interesting paper about blood feud and essentially explained that restitution arrangements evolved out of the blood feud to mitigate the violence associated with the blood feud. I’ve studied the Pashtun tribes in Afghanistan where you see the same sort of thing. They have a blood feud kind of legal system, but there are all sorts of ways to avoid the blood feud.
Parisi’s story is simply that – with no legal system, [0:50:00] essentially people would take revenge on people that harmed them and – but people lived in communities and these kinds of violent conflicts and feuds could spread and generate significant negative impacts on the rest of the community. So there’s – pressures are starting to build to alleviate this problem of violence. So the result is that a customary norm develops that says you cannot take more in retribution than you initially suffered. It’s the eye for an eye kind of idea.
Of course that means then that you start – you have an objective thing that both parties anticipate is going to occur. I put out somebody’s eye. The expectation is that that guy or one of his friends or family is going to try to put my eye out.
Well, I don’t want to lose my eye. Maybe I can offer him some money not to do it and so as a replacement for revenge, you get negotiation and payment and ultimately then the order of events shifts.
Initially it was revenge but you can negotiate and ultimately it becomes negotiate, go through a fair trial, something like that, and then if it doesn’t work, you can take revenge.
Trevor Burrus: So what are the lessons for today from this idea that there could be private law and private provision of law? What are the lessons for today?
Aaron Ross Powell: Can we scrap what we’ve got and go back to a fully private system? Would that be inadvisable?
Bruce Benson: Well, I – what I would like to see is just opening up, legalizing lots of private alternatives. Then if the state can compete, fine. But if they can’t compete, they go out of business.
A modern example. In Japan, if an individual commits a crime against another individual, and that individual gets caught, he – typically a representative of that individual, someone in his family perhaps or something like that, will go to the victim and say, “Boy, this guy is really sorry for what he did. Is there something he could do to alleviate your suffering?”
So you get a negotiation oftentimes with the help of a mediator where ultimately the offender pays a compensation to the victim and if the victim is satisfied, he writes a letter to the judge who’s going to try this guy and says, “He’s remorseful. He has compensated me. You shouldn’t punish him too severely.”
That works pretty well. You don’t hear nearly as much about crime and prison riots and things like that in Japan as you do here. That doesn’t eliminate crime. There’s always crime or offenses. But another example, in lots of communities now, there are what are called victim offender mediation programs where an organization, maybe a church, some private organization, develops a program to – prosecutors actualy like it oftentimes because it relieves court crowding, where they divert the offender into a mediation setting where they sit down typically at a table with the victim, a mediator, any other affected parties, perhaps members of families and so on.
They talk about it. The offender – I mean the victim is able to actually tell the offender how much harm was done. The offender sees the victim as a real person instead of just someone they didn’t know, that they took something from. They negotiate a contract for compensation. It doesn’t have to be money. The offender might agree to mow somebody’s lawn for a year or do some other sort of task for a period of time or they agree to pay or something like that.
Anyway, about – the last thing I read suggested that about 95 percent of these victim‐offender mediation efforts lead to a contract and something like 92 percent of the contracts are fulfilled. Well, that sure is a lot less costly way to deal with these offenders than putting them in prison where we spend $20,000, $30,000 a year to house them and feed them. The offender is perhaps doing productive work and the victim is being compensated for the loss.
These kinds of programs are spreading really – there are lots of them in New Zealand. There are growing numbers in Canada and the United States. We see them cropping up in Europe now. So it’s – in a sense it’s a move back to restitution.
Trevor Burrus: And perhaps just one of the worst things that the authoritarian system does is it keeps us from thinking about new ways of solving problems that arise and keeps us thinking in this one state‐centered type of way.
Aaron Ross Powell: I mean it keeps us thinking that way because it doesn’t – I mean it bans the alternative, right? So we can’t even – I mean that’s the thing is when you talk to people, even raise the topic of we could have law enforcement, we could have law creation without the state, it seems as silly as the notion of democracy.
Aaron Ross Powell: When you were describing democracy to the people of Europe a minute ago, it sounds just as crazy. I mean it’s in large part because the state does everything it can to stamp out those alternatives before they get a chance to get off the ground.
Bruce Benson: Yeah. Why don’t we have – someone might say, “Why don’t we have private police?” The answer is we do where it’s allowed, where the state doesn’t prevent it. And we do – in many cases, where the state does try to prevent it. The railroad system in the United States and Canada has its private police force. Lots of corporations have their own security system with large numbers of security personnel. So if the state allows these individuals or these firms to engage in policing‐like activities, the private sector will produce it.
Right now, the dominant function of the private sector in terms of what we think of as policing activity is in protection because that is allowed essentially everywhere. You can hire private security to protect your home or your business and so on and there are estimates of perhaps three times as many private security personnel in the US as there are public police.
These people range everywhere from the typical – sort of stereotypical night watchman or mall cop to highly trained, sophisticated private firms and personnel guarding all of our nuclear [1:00:00] facilities in the United States, guarding all of our chemical facilities in the United States. Used to deal with airports. Now with TSA. I would invite a careful comparison of the two with airports. I think we made a huge mistake moving to public provision of airport security.
So there are – everything that we think of as a function of the state in terms of law and law enforcement is in fact being done or has been done by the private sector and there’s always this give and take, tug of war as people try to move things into the private arena and the state tries to pull them back into the public arena and that sort of thing. But it’s something that people don’t really notice.
Trevor Burrus: Thank you for listening. If you have any questions, you can find us on Twitter, @FreeThoughtsPod. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.Libertarianism.org.