PURSUING JUSTICE IN A FREE SOCIETY:
PART TWO-CRIME PREVENTION AND THE
LEGAL ORDER
5 Criminal Justice Ethics 30
(1986)
RANDY E. BARNETT
Preventing Crime in a Free Society
Crime Prevention as a Social Goal
Law Enforcement as a "Commons" Problem
1. Some Inefficiencies of Public Law Enforcement
2. Public Property and the Right to Exclude
3. Comparing Private and Public Property
4. The Role of Imprisonment
The Logic of Public Crime Prevention
Other Factors Influencing Criminal Conduct
Unanswered Questions About a Liberty Approach
A Nonmonopolistic Legal Order
Noncoercive Sources Of Funding
No Jurisdictional Monopoly
Imagining A Nonmonopolistic Legal Order
Conclusion: Beyond Justice In a Free Society
In the first installment of this article, 1 the substantive rights and remedies of the Liberty Approach were identified and evaluated. The substantive rights of individuals involve claims they make on the use of resources in the world, beginning with their bodies and ending in the use of external resources. Those claims which are justified are called property rights. Adherents to a Liberty Approach contend that each individual has moral and legal jurisdiction over his or her person and possessions. This means that they have discretion as to how their property is used unless this use threatens to violate the rights of another. Should someone interfere with the use and enjoyment of another's property or threaten to do so, the person whose rights are being violated or threatened may justifiably employ self-defense and also is entitled to restitution 2 for the forced appropriation of rights that has occurred.
What remains to be discussed, in this second installment, is the form that a legal order should take to secure these rights and remedies without itself infringing upon them. Before considering this question, however, it is important to see how the Liberty Approach can deal with the problem of crime in ways that do not directly involve the legal system.Preventing Crime in a Free Society
It may be argued
that in a society governed solely by the individual rights of the Liberty Approach, coupled with self-defense actions and a restitutive remedy for those rights violations that occur, there would be "too much" crime.
Three observations need to be made before directly responding to this criticism. First, the criticism assumes that a quantitative
scale of evaluation exists by which we can assess how much crime is too much. No one believes that any legal system will eliminate all crime. Moreover, we know that we might have far less crime today, except for the
value we place on features of a free society that would be lost in the unbridled pursuit of lower crime rates. Unless the critic who raises this point is more specific (and few ever are), we cannot know what it would take to
satisfy the criticism. just how much crime need we demonstrate will exist in a free society to rebut the claim that it will be "too much"?
Second, it would be improper to compare a society governed by the Liberty Approach against some absolute scale of perfection, assuming one was offered by the critic. No society is or ever will be perfect, and I have been careful to avoid criticizing the Power Principle for simply being imperfect.
Third, and perhaps most important, in comparing the Power Principle with a Liberty Approach, it would be improper simply
to compare the respective remedies of each approach-for example, punishment vs. restitution-while controlling for all other social variables. Each remedy is but a component of a comprehensive legal approach to social problem
solving. In other words, when either approach is actually adopted, the form or severity of the remedy for criminal conduct would never be the only variable that would account for differential rates of crime. For example, the severity of a remedy affects the certainty of its imposition.
The goal of crime
prevention must be viewed in the same light as all other important social goals, such as health, education, and economic well-being. For a society to survive and flourish, it must strive to achieve each of these goals, but
not every means can be permitted in this quest. Individual rights, the prerequisite of individual survival and fulfillment, must at all times be recognized and respected. Rights are what Nozick calls
"side-constraints" on our pursuit of various social (and other) goals. 6
These constraints do not evaporate simply because the ultimate goal is the protection of individual rights themselves.
Any failure to adequately define or respect individual rights in organizing law enforcement institutions has three
adverse effects. First, the example of community leaders disregarding individual rights in pursuit of goals thought to be socially desirable encourages the violation of rights by others in pursuit of their goals.
Second, a principal benefit of respecting property rights is that it makes possible a free market in goods and services with its unique ability to efficiently allocate resources.
When property rights are ill-defined, misallocations of resources will occur. If a particular resource
is thought to be held in common-that is, if all are thought to have an equal right to exploit the use of this property-then no person has the right to exclude others from using the resource. Without the right to exclude, it
is unlikely that the benefits accruing to persons who privately invest in the care or improvement of a resource will exceed the costs of their efforts. Indeed, the overriding incentive for resource users lacking a right to
exclude others is to maximize their own consumption lest others consume the resource first. For this reason, commonly held resources are typically overused and undermaintained.
The depletion of vital resources in the face of a universal consensus as to the importance of
their continued maintenance is known as the "tragedy of the commons." While this analysis of the use and consumption of farmland and other resources is well known, it has seldom been
applied to the problem of crime prevention. If the traditional economic assessment of the "commons" problem is valid, it is reasonable to suggest that at least part of the problem of "crime in the streets"
may stem from the belief that the streets must be owned in common. The fact that public parks and streets are held in common adversely affects crime prevention in two important ways.
First, when little incentive exists for individuals to commit their private resources to prevent rights
Just as a parent will not invest in playground equipment to
be put in a public park for the use of his children, neither will individuals voluntarily pay for private security patrols to protect themselves or their children while they use the public parks and streets unless, as is sometimes
the case, the provision of this service can be limited to those who are paying for it. Security guards may be hired to patrol a government owned street if conditions become so dangerous that most residents of that street are induced to contribute. Or guards may be employed to escort a sufficiently valuable shipment of
property that is being conveyed on public streets if the risk of loss is great enough to justify the costs. Normally,
however, because private investors in protective services on public property cannot adequately benefit from their investment, such services are unlikely to be privately provided. As a result, all responsibility for such
protection must fall upon the governmental agency that has assumed jurisdiction over the property in question. Taxes must be raised and government employees hired to protect the users of the property. Here, as
elsewhere, defining a package of goods and services-in this case protective services-as a "public good" and then attempting to provide that good by government agencies is inherently less responsive to the needs and
demands of consumers than defining property rights in such a manner as to allow both private investment and consumption.
The reasons for this need not be elaborated here. It should suffice to say that the practical accountability of government
law enforcement agencies to the consumer will at best be indirect and at worst nonexistent. Government police agencies, especially those in large cities, are beholden first to the political establishment that dictates their
funding, and second-if at all- to individual members of the general public. Taxfinanced government agencies are protected from competition and need not obtain the actual consent of their "customers." Unlike
market institutions, which must rely on consensual agreements and payments, government police agencies lack both the motivation and the ability to discover and respond to shifting and diverse consumer preferences.
2. Public Property and the Right to Exclude
The unwillingness and inability of public law enforcement to allocate resources so as to efficiently respond to the needs of consumers is only part of the problem. Perhaps the defining characteristic of private property is the right of a property owner to control its use. You need not admit into your house any person who knocks on vour door; nor must you wait for a guest on your property to commit an aggressive act before you may ask that person to leave. Being a private property owner gives you the right to consent to its use by others, and such a right is meaningless unless you have the right to withhold consent as well. 12
When governments assume control over streets, parks, and other
common resources, they are acting in the capacity of property owners. For sound theoretical and practical reasons, however, governments in a free society will be denied many of the rights accorded private individuals and
institutions. Democratic theory specifies that government exists at the pleasure and for the benefit of the general public. Public property is said to belong to all the people and is merely "held in trust" by
the government. A governmental right to limit the access of citizens to public property without some acceptable reason would be inconsistent with this theoretical premise. As a practical matter, a free society would not
remain free for long if its government, which coercively maintained its monopolv control over all streets, sidewalks, and parks, were accorded the same rights and discretion enjoyed by private property owners.
For these reasons, governments must be prevented by constitutional constraints from denying access to public property, which is (in
theory) held for the use and benefit of all citizens, unless good cause can be shown. But restricting the right of governments to control public property unavoidably creates intractable problems of "social"
control. Requiring only a mere suspicion or "reasonable belief" that someone might commit a crime to justify governmental exclusion would not adequately protect citizens from government abuses. Such a standard
would be too easy for the government to meet and too hard for the citizen to contest. But requiring probable cause before government can arrest a suspect, and proof beyond a reasonable doubt before it can use incarceration to
deny access to public areas by those who have already committed crimes leaves considerable opportunity for criminal profit.
Any society that chooses to be organized by the Power Principle is therefore faced with what might be called
a dilemma of vulnerability. Since governments enjoy privileges denied their citizens and are subject to few of the economic constraints of private institutions, their citizens are forever vulnerable to governmental
tyranny. Therefore, freedom can only be preserved bv denying government police agencies the right to regulate public property with the same discretion accorded private property owners. Yet steps taken to protect society
from the government also serve to make citizens more vulnerable to criminally inclined persons by providing such persons with a greater opportunity for a safe haven on the public streets and sidewalks and in the public parks. The
Power Principle's dilemma of vulnerability creates an ever-present temptation to trade liberty for security-that is, to compensate for the inefficiency of government-provided law enforcement by unjustly restricting individual
rights in one of two ways: by prior restraints on conduct (preventive detention) or by increasing the punishment of those few criminals who are caught in the hopes of deterring the many whom the government police cannot catch or
the government courts cannot convict. Either tactic risks the serious consequences of "overpunishment." And, as was just discussed, to compensate for the inefficiency of monopoly law enforcement and public property
by increasing the severity of punishment decreases still further the certainty of its imposition. In this manner, pursuing the social goal of crime prevention by means of the Power Principle creates a serious social
instability that is always threatening a free society from within.
In relatively well-to-do areas, where large shopping centers and office complexes are the most common forms of commercial activity, roads,
parking lots, sidewalks, and security patrols are all privately provided. In contrast to governmentally administered shopping districts in big cities, the owners of private developments can control access to the common areas
between stores and offices. Any failure to effectively curtail criminal conduct will carry with it serious economic costs since increased crime causes rent receipts to decline. By the same token, discourtesy and overly
restrictive crime control efforts can also cause lost business and bad will. These consumer-oriented incentives also exist for owners of larger private residential developments. These incentives impel law enforcement efforts
that are responsive to the needs of both the property owner and the consumer to whom the property owner is attempting to appeal.
Similarly, in smaller communities where values are relatively homogeneous, informal social pressure is more effective in
inhibiting disapproved behavior and government officials can more easily exert control over governmental police agencies and public property akin to the control of private property owners. Consequently, the problem of crime control will be diminished in these settings for much the same reason that it is on truly private property.
The brunt of today's crime problem occurs in older, predominantly poor areas, where commercial, residential, and
recreational activity must depend most heavily on traditional forms of public property management, and in those places where the diversity of the population prevents a monopolistic system from approximating a market solution (as
might be achieved in smaller, more insular, and more homogeneous communities). It is not surprising, then, to find the problem of "crime in the streets" at its worst where property rights are the least well
defined. If the reliance on public property and public law enforcement is reduced, those who cannot now afford the benefits of private property and efficient law enforcement will obtain access to the types of services
presently confined to other segments of society.4. The Role of Imprisonment
Thinking of the provision of law enforcement as a "public good" that must be provided by "society" can lead some to view society as a
rights-bearing entity. Crimes may, in this view, be seen as offenses against society or the "state." The victim's right to reparations is thought to be civil in nature and, in practice, is treated as secondary to a
criminal charge (the sanction for which is rarely reparations to the victim). By subordinating individual rights to "the rights of society," this "organistic" conception of society undermines both justice
and crime prevention. The practice of incarcerating criminals in public prisons stems directly from the twin imperatives of the Power Principle:
to punish offenders and to exclude them from public property. Imprisonment effectively deprives victims of their right to reparations in those cases where the greatest rights violations have occurred. Victims of the
most serious crimes and their families are thereby twice victimized: once by the rights violator and again by the enforcement agencies that require victims to participate at some considerable risk and cost while denying to them any
effective ability to obtain reparations from the offender. Public prisons as they now exist are both unjust to victims and largely unnecessary to accomplish
any other purpose. Imprisonment can at best be viewed as a crude approximation of a market response to criminal conduct. Just as private citizens may individually or collectively ban others from their property, the
government uses the penitentiary system to keep dangerous individuals out of public (and private) property. But public imprisonment has several significant drawbacks.
First, because a complete deprivation of liberty is such a severe sanction, one must be proved guilty beyond a reasonable doubt of a most serious crime before
imprisonment is permitted. Many guilty persons, therefore, escape the sanction and remain free. Second, imprisonment is a blunt instrument. Although sentence lengths can vary, you are either in prison or you are
out. As a result criminal sanctions for many offenders admit of only two degrees of severity: onerous or virtually nonexistent. Third, imprisonment is expensive. While scarce resources are expended to confine,
prisoners are prevented from producing anything of value to others. Finally, because only the worst offenders are incarcerated, prisons become very dangerous
places. Dangerousness is thereby added to the deprivation of liberty to heighten still further the severity of imprisonment. As a result, judges become even more reluctant to sentence a person to prison for fear of a
very real risk of overpunishment. Where they have discretion, judges become even more inclined to give even serious felons the benefit of the doubt by sentencing them to a period of probation until they have established a
sufficiently serious criminal record. Actions speak louder than words, and repeat offenders soon come to rely upon the legal system's reluctance to incarcerate them. No one is more surprised than they are when the
prison gates finally close behind them for the first time. By this time it is too late for deterrence.
THE LOGIC OF PUBLIC CRIME PREVENTION
Most people-including most criminal justice professionals-adhere to the Power Principle, and for this reason they cannot
see any fundamental alternative to the "public" approach to crime prevention. Their vision is limited to ad hoc "reforms" of the present system that fail to address the fundamental obstacles placed in the
path of crime prevention by public property, public law enforcement, and public imprisonment. Each of these institutions results from the internal logic of the Power Principle.
Step one: start with public streets, sidewalks, and parks where every citizen must be permitted unless proved guilty of a
crime. Step two: rely on an inherently inefficient public bureaucracy to catch, prosecute, and try those criminals against whom enough evidence of guilt exists. Step three: should they be convicted, subject them to the
dangerous and sometimes uncontrollable setting of public prisons to prevent them from engaging in further misconduct. Step four: periodically release most prisoners back into the community and then return to step one and
repeat the cycle. Each step follows from the preceding step, and each step unavoidably leaves considerable room for criminal conduct to thrive. If we set out deliberately to design a system that encouraged criminal
conduct and nurtured hardened career criminals, we could hardly do a better job. (And I have omitted any discussion of the bizarre legal system which attempts to deal with those criminals who are defined as "juveniles.") A Liberty Approach promises a way to break free of this vicious cycle. Private social control and crime
prevention become feasible as the institution of public property is supplanted by a more extensive recognition of private property rights. Such a shift promises significantly more effective law enforcement efforts.
First, private efforts can be truly preventative. In contrast to the public response, which must await the commission of a crime before taking action, Third, in contrast to a penitentiary system, where one is either in prison or out, exclusion from
private property is a far more decentralized process of individual decisions. Suspicious persons can be excluded from some "public" places and not others, resulting in a far more gradated response to the threat of
crime than imprisonment. Fourth, in a society where the rights of victims to restitution were fully protected, any firm which confined convicted criminals would be legally obliged to provide them with productive work at
market wages (reflecting their productivity) in a secure environment. Prisoners might even engage in collective bargaining. Their wages would be used to pay for their living costs and to make reparations to their
victims, and they would be released only when full restitution had been made or when it was adjudged that reparations could more quickly be made by unconfined employment.
OTHER FACTORS INFLUENCING CRIMINAL CONDUCT
Of course, other factors contribute to the problem of crime besides those discussed here. For example, governmentally enforced restrictions on the labor market and on
entrepreneurial activity have prevented "classes" of people from escaping their dependence on government assistance or on criminal conduct. To the extent that persons are principally motivated to commit crimes
(usually property crimes) by genuine financial need, a freer and more prosperous society where more economic opportunities were available to those who are willing to work should significantly reduce this incentive.
Moreover, statutes against victimless activities of all kinds have created lucrative black markets which provide enormous
profits to those persons who are willing to break these "laws." Such "criminal" activity will inevitably undermine whatever respect for law a person engaged in such conduct may once have had. In such a
setting, it is unrealistic to expect most black marketeers, whose livelihood is earned by providing goods and services that are deemed to be illegal, to observe the fine line between violating such statutes and violating the
genuine rights of others-particularly when their black market activities are denied the protection of recognized legal institutions and they must routinely resort to self help.
Victimless crime laws not only breed victim crimes, but the huge premiums that result from making certain highly
desired transactions illicit create powerful financial incentives for criminals to organize into groups which in effect purchase the "rights" to engage in criminal conduct by corrupting law enforcement agents at all levels.
No approach to any serious problem is without difficulty. By now, several important questions about a Liberty Approach are likely to have occurred to most readers: How would
private law enforcement services be paid for, especially by the poor? How would private owners be able to coordinate their preventative activities? How would injustice by private owners be held in check? How could
enforcement agencies be prevented from banding together and recreating a monopoly system? Is law enforcement a "public good" that for economic reasons cannot be provided on a market?
Answers to some of these questions will be offered in an exploratory fashion in the next section. Other questions
must be left unanswered for now because of space limitations. A Liberty Approach will not, however, be taken seriously by reformers if the problem of providing services to the poor is not discussed. So let us turn our
attention briefly to this important issue. Those who are unable to pay for private law enforcement services (and other
privately provided goods and services) may receive them in one of four ways. Such services might be voluntarily provided to poor persons without charge (pro bono) by private firms, or people concerned
about the well-being of others can voluntarily give to private agencies who will pay for private law enforcement services for the poor.
Supposing (as most people do) that some degree of forced redistribution of wealth to poor persons is justified, there is no reason why
an inferior system of public property, public law enforcement, and public imprisonment must be created or preserved just to service those who are not wealthy enough to pay for private law enforcement. Either direct cash
payments or "vouchers" (which are money payments with use restrictions) can be provided to the poor to pay for those privately provided services that are now governmentally provided.
Giving the poor recreational, law enforcement, and judicial services "in kind" makes as much sense as creating a
governmental food production and distribution monopoly for everyone to ensure that the poor have food. Instead, vouchers-called "food stamps"-are given so that the poor can buy food from private sources. Had
the private food production and distribution system been supplanted by a government system at some distant point in our history, exactly the same criticisms would probably be made of a Liberty Approach to food production as are
made in opposition to extensions of a Liberty Approach to areas where our history has been less fortunate and the Power Principle has prevailed.
Despite whatever serious problems they may be experiencing, most people have a natural conservative instinct to accept that which
exists as inevitable and right. The truth is, however, that imposing a retrogressive public system of law enforcement on everyone solely to benefit those who are poor is unnecessary, foolish, and wrong.
A possible ... objection to the view [of law] taken here is that it permits the existence of more than one legal system governing the same population. The answer is, of course, that such multiple legal systems do exist and have in history been more common than unitary systems. 19
What kind of legal order is consistent with the rights and remedies described in Part One of this article?
20 Two constraints on our choices immediately present themselves.
First, the legal order must be financed by noncoercive means. The confiscation or extortion of one person's
rightful possessions to finance the defense of that person's rights or those of another is itself a rights invasion.
There is no reason why either a law enforcement agency or a court system cannot charge for its services, in much the same way as do other "essential" institutions, such as hospitals, banks, and schools.
23
Each business requires expertise and integrity, and institutions engaged in such activities must earn the trust of the consumer. Hospitals, banks, and schools, however, rely primarily on fees charged their customers, though payment of these charges can be made in a variety of different ways.
The very large and largely unanticipated expenditures for emergency hospital care are financed by insurance
arrangements, by conventional credit and, of course, by cash payments. Banks raise the bulk of their revenue from the difference between the interest they charge borrowers and the interest they pay depositors, and where this
differential is narrow, service charges may be imposed as well. Schools which do not receive tax receipts rely largely on tuition payments made by parents and students out of savings or from the proceeds of long-term
loans. A significant portion of both educational and health services is subsidized by private charitable contributions.
It takes no great imagination to envision competitive law enforcement
agencies providing police protection to paying subscribers-especially in a society where streets, sidewalks, and parks are privately owned. (Park and road owners could, for example, bundle the provision of protective services with
their other transportation and recreational services.) Such a system 25
would probably include agreements between agencies to reimburse each other if they provide services in an emergency to another firm's client. 26
Competitive court systems could utilize many of the same techniques as hospitals to fund their services: insurance, credit, cash, and charity. Prepaid legal service plans or other forms of legal insurance are also possible and, where permitted, sometimes are available even today.
In addition, court systems could profit by selling the written opinions of their judges to law firms (or to the various retrieval services on which
lawyers rely). Such opinions would be of value to lawyers and yield a profit to the court system which sold them only to the extent that they are truly useful to predict the future actions of these judges. So to fully
profit from such publications, each court system would have to monitor and provide internal incentives to encourage its judges both to write and to follow precedential decisions.
At present, attorneys bill clients by the hour or collect a percentage of the damage awards they succeed in obtaining. They also work pro
bono-that is, they donate their services in the interests of justice. Except in unusual cases, however, those who successfully bring or defend lawsuits in the United States today cannot recover their legal fees from those
persons who either violated their rights or who wrongfully brought suit against them.
In contrast a Liberty Approach requires restitution to compensate as completely as possible for all the determinable expenses which result from a
rights violation. Therefore, in a legal system that adheres to a Liberty Approach, the loser of a lawsuit must be liable (at least prima facie) for the full legal costs of the prevailing party. In the absence of such a
rule, the innocent party would be made to absorb some of the costs of the other party's wrongdoing. And such a legal rule would also serve both to protect innocent persons from the expense and injustice of baseless lawsuits
by increasing the costs of losing weak cases, and to help pay for meretricious winning lawsuits brought by people who could not otherwise afford the legal costs.
Moreover, it is important to note that consumers using such institutions as hospitals, schools, and banks must now pay both for the services of doctors,
bankers, and teachers and for the overhead of the facility (the hospital, the bank, or the school) where these professionals practice. With the legal profession, however, we are accustomed to privately paying for lawyers,
while providing the capital and labor used by lawyers-courts and court personnel-by tax receipts. This "public good" arrangement encourages overuse by some until court backlogs and overcrowding Create queues that
substitute for prices or fees to clear the market.
Some people worry that allocating court resources by means of a market price mechanism will unfairly reward the
rich. But the system as it now exists rewards those litigants who are better able to wait out the imposed delays and penalizes those who for any reason require a fast decision. In short, the financing of legal services is neither a very different nor a more serious problem than the
financing of many other public services that rely only minimally, if at all, on tax revenues and that sometimes even now must compete against tax
The argument that law enforcement and adjudication are so important that they must be provided by a coercive monopoly is ironic. If one had to identify a service that is really
fundamental to social well-being, it would be the provision of food. Yet no one (in this country) seriously suggests that this service is "too important" to be left to private firms subject to
the market competition. 31
On the contrary, both theory and history demonstrate that food production is too important to be left to a coercive monopoly.
The more vital a good or service is, the more dangerous it is to let it be produced by a coercive monopoly. A
monopoly post office does far less harm than monopoly law enforcement and court systems. And a coercive monopoly might go largely unnoticed if it were limited to making paper clips-that is, the inferior and/or costly paper
clips inevitably produced by such a monopoly might not bother us too much. It is when something really important is left to a coercive monopoly that we face potential disaster.
Moreover, upon closer examination the seemingly radical proposal to end the geographical monopoly of legal systems
is actually a rather short step from the competitive spirit to which we have been, and to some extent still are, accustomed. In the long history of English law, royal courts competed with merchant courts; courts of law
competed with courts of equity.
In evaluating the merits of a nonmonopolistic legal order we must be careful always to take a
comparative approach. It is tempting but ultimately fruitless to compare any proposal to an ideal that no other possible legal order could more closely achieve.
Without a coercive monopoly, actual or potential competition provides genuine checks and balances. In a competitive
legal order, an individual excluded from or oppressed by one legal system can appeal to another; an individual shut out of a monopoly legal system cannot.
Contrary to contemporary preferences for a unitary legal system, it is the pluralism
of the Western legal order that
has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king. 37
Law will remain supreme in a society if, and only if, a unitary legal system does not develop.
Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems. It is this plurality of jurisdictions and legal systems that makes the supremacy of law both necessary and possible. 38
The modern monopolistic conception of a unitary legal system threatens this vital diversity. 39
Moreover, while we are accustomed to thinking about a single
agency with a geographical monopoly- such as county government-providing both the judicial system and the police agency to enforce its orders, in a competitive legal order no such combination is either likely or
desirable. Wholly different skills and resources are needed to efficiently render just decisions than are needed to efficiently enforce such decisions as are rendered by a court.
For instance, an efficient judicial system must accumulate and organize the historical information and legal
analysis needed to do justice between contending parties, and it must also demonstrate to the relevant social group that justice is being done. A successful court system must fulfill at least two distinct functions: the
justice function and the fairness function. The justice function consists of devising and implementing reliable means of accurately determining facts and law. The fairness function consists of convincing the
practicing bar who must recommend where to initiate lawsuits, the litigants who must suffer the consequences of this choice, and the general public who must acquiesce to the enforcement of legal judgments in their midst that the
procedures it has employed have produced justice. A legal system will not provide a service worth paying for if it fails to fulfill either function. Additionally, some kinds of procedural safeguards may be mandated not only by market demands but by principles of justice as well.
Efficient law enforcement, on the other hand, involves the least costly use of coercion (a) to
protect people from harm, (b) to seize and sell property in satisfaction of judgments by a "recognized" court, or (c) to administer a system of productive enterprises where persons who are either unable or unwilling to
make payments from regular earnings can be employed under controlled conditions and paid market wages from which reparations are deducted until their debt to the victim is satisfied. 41
It is implausible that a single agency would provide any two of these services. The fact that an institution performs one of these functions well would seem to be unrelated to its ability to effectively perform any of the others. It is even more implausible that a successful law enforcement agency would also most efficiently supply judicial services.
As important as the balance maintained by a competitive legal order are the constraints provided by the requirement that legal
systems contract with their clientele. Deprived of the power to tax and the power to coercively impose their services upon consumers, legal systems which must depend upon market-based fees and prepaid insurance would have to
be comparatively more responsive to the needs and desires of their consumers than agencies with the right to collect their revenues at gun point. The fact that individuals and firms respond to the incentives provided by
competition is acknowledged to be true in every other area of human endeavor. Human nature does not suddenly change when one gets a job providing law enforcement and judicial services. Where opportunities for
better service are perceived by entrepreneurs, the capital markets permit enormous amounts of money to be raised in a short period of time, either to purchase existing firms which are mismanaged, to start a new firm, or to
diversify from one area of law enforcement into another. Each legal system would be constrained by the knowledge that alternative systems exist, in much the same way that individual states in a federal system are constrained in how they make corporation law by the knowledge that it is always possible for companies to reincorporate in another state without moving their assets.
In short, there is an increased likelihood that a competitive legal order would be far more responsive to the
consumer than a coercive monopoly. In fact, when one seriously compares the potential responsiveness of each system, many readers may concede the point and offer the opposite objection: Competing jurisdictions would most
likely be too responsive to their customers, and this would inevitably lead to injustice and serious conflicts among agencies, creating serious social disruption. What is to prevent one judicial organization
from fighting with or ignoring the rulings of another? Why should any organization heed the call of another? These are serious questions deserving serious answers, but first some perspective is needed.
We now have fifty (state) court systems in the United States, each with its own hierarchical structure, plus twelve
Federal Circuit Courts of Appeals. There is no general right to appeal from the decision of any one of them to the Supreme Court of the United States. (With few exceptions, the Supreme Court of the United States must choose
to accept a petition for review.) And the situation is, in fact, still more diverse. For within each state, there are often numerous appellate court jurisdictions from whose judgment one has no general right to appeal
to the supreme court of that state. (Again, with few exceptions, the supreme courts of each state must choose to accept a petition for review.) Moreover, the federal as well as many state appellate court districts are divided into
"panels" of judges, who are randomly assigned to hear cases arising from the same jurisdiction. Add to this diversity the many municipal court systems and courts of limited jurisdiction-such as bankruptcy courts-and
the image of a unitary court system begins to blur. The abolition of geography-based
jurisdictional monopolies would mean only that jurisdictional conflicts would arise between persons who had chosen different court systems by contract,
rather than as now between persons who have decided to live in different places. Extended conflict between competing court systems is quite unlikely. It is simply not in the
interest of repeat players (and most of their clients) to attempt to obtain short-run gains at the cost of long-run conflict. Where they have the opportunity to cooperate, in even the most intense
conflicts-warfare, for example-participants tend to evolve a "live and let live" philosophy.
Courts and judges have, therefore, traditionally found peaceful ways to resolve the two questions most likely
to lead to conflict when multiple legal jurisdictions exist: Which court system is to hear the case when more than one might do so? And which law is to be applied when more than one law might be applied? Much of the
court-made law of "civil procedure" addresses the first question, What is the subject matter of the conflict of laws? A fairly neutral definition ... is that the conflict of laws is the study of whether or not and, if so, in what way, the answer to a legal problem will be
affected because the elements of the problem have contacts with more than one jurisdiction.
How much greater the incentive to cooperate would be if competing
judicial services did not have access to a steady stream of coercively obtained revenue-that is, by taxation. Those contemplating such a conflict would know that the resources available to fight would not exceed those on hand
and those which people were freely willing to contribute to the fight. Unlike national governments, they could not obtain by coercion-that is by draft-personnel to enforce their judgment.
A"renegade" judicial system or law enforcement firm, no matter how financially well endowed it might be as
compared with any single rival, would undoubtedly be dwarfed by the capital market as a whole. Imagine the Cook County Sheriff's Office fighting all the other sheriff's offices in the region, state, or country with only the
resources it had on hand. (Actually, the jurisdictional dispersion of a nonmonopolistic legal order makes McDonald's declaring war on Wendy's and Burger King a far more apt analogy.)
The argument that we need court systems with geography-based jurisdictional monopolies does not stop at the border of a
nation-state. Any such argument suggests the need for a single world court system with one Super-Supreme Court to decide international disputes and its own army to enforce its decisions. After all,
the logic of the argument against a competitive legal order applies with equal force to autonomous nations.
To better understand the case for a nonrnonopolistic legal order and the deficiencies of a monopolistic
system, posit what most people fear would happen if a unitary international "one-world" court system and police force were adopted. The same fears should apply with equal force to a national monopoly court system,
except for the fact that some people have the ability to flee if a single country becomes too tyrannical. The abolition of geography-based jurisdictional monopolies would simply strengthen the constraints on tyranny by making
alternative legal systems available without leaving home. In sum, conflicts between court systems whose
jurisdictions geographically overlap present no huge practical problem. It is more reasonable to expect a never-ending series of "little" problems around the edges. Information must be shared; duplicated
efforts avoided; minor conflicts settled amicably; and profit margins preserved. As with any other organization, the normal problems confronting business and political rivals-who must constantly strike a balance between
competition and cooperation-would have to be managed. How these edges would be smoothed would sometimes require ingenuity. There is no good reason, however, to refrain from seriously pursuing this alternative to the Power Principle.
It is no easier to predict the formal organization and division of labor of a future legal order than it is to predict the formal organization of the personal computer market ten years from now. (Of course, ten years ago the challenge would have been to predict the very existence of a personal computer market.) Difficulties of prediction notwithstanding, some speculation is needed, for without a conception of what such a legal order would look like, few will be inspired to move in the direction of a Liberty Approach. However, rather than attempt the impossible task of comprehensively assessing the limitless possibilities that freedom makes possible, let us instead imagine that somewhere today there exists the legal order that I shall now describe. 50
In this hypothetical world, the vast majority of people who work or who have spouses or parents
who work are covered by health insurance arrangements (like those provided in our world by such companies as Blue Cross/Blue Shield). In return for a monthly fee, if they are ever sick they receive medical attention by simply
presenting their membership card to an approved doctor or hospital. In this hypothetical world, many people also carry a Blue Coif/Blue Gavel card ("Don't get caught without it!") as well. If they ever need
legal services, they present their card to an approved lawyer and court system. Of course, as with medical insurance, not all kinds of legal actions are covered and there may be limits to some kinds of coverage; and not
everyone makes use of this type of system. Others belong to a "Rights
Maintenance Organization" (or "R.M.O."). These firms keep lawyers on staff as salaried employees (rather than as partners) providing "preventative" legal services. Costs created by needless or
hopeless litigation are said to be more tightly controlled than is possible with conventional legal insurance arrangements, and this permits an R.M.O. to offer more coverage for a lower premium. Legal disputes between members
of the same R.M.O. are very expeditiously handled internally. And when it is necessary to go to an outside court, the R.M.O. will pay the court fee (having arranged group discounts for its members in advance). On the
other hand, the freedom to pi@k your own lawyer within an R.M.O. is necessarily limited, and this feature will not satisfy everyone. Another drawback is the fact that the client is more dependent on the R.M.O.'s determination
that a lawsuit is cost-justified than is a client who has coverage by Blue Coif/Blue Gavel. Large retailers (like Sears) who sell insurance (Allstate), investment (Dean Witter), and real estate (Caldwell Banker) services also
sell legal services, as do some bank and trust companies. Most offer in-house revolving charge accounts as an alternative to insurance and other kinds of credit arrangements. Law firm franchises dot the landscape with
well-lit (some think garish) "Golden Scales of Justice" signs prominently displayed at streetside. Located in shopping malls and along busy streets, these firms advertise nationally and specialize in high volume
(some say homogenized) practices, handling routine legal matters at standardized fees. (They accept Blue Coif/Blue Gavel and major credit cards.)
Such mass merchandising is not for everyone. Many clients still prefer the personal touch and custom
Other means of financing lawsuits besides insurance are also available. A few credit card
companies offer extended payment plans when used for legal services. Contingency-fee-based entrepreneurs (who, like everyone else, can and do advertise widely) serve many who cannot or choose not to advance the money
for legal services. (However, to help minimize the number of improvident lawsuits, some court systems have established rules restricting such practices in a manner similar to the rules established in our world by private
stock and mercantile exchanges.) Such legal entrepreneurs are a bit more risk averse than they are in our legal system since, if they lose, their clients will be liable for the full legal expenses of the other side. Still,
they provide an important service to many who could not otherwise afford legal services.
The judicial order mirrors the diversity of the legal profession as a whole. There are well-known and well
advertised national judicial centers, with regional and local offices, that handle the bulk of routine commercial practice. (These
firms sometimes attempt to satisfy the fairness function by hiring lay jurors to decide simple factual matters.) There are small firms that handle specialized legal matters like maritime cases and patent or mineral disputes. (These
firms almost never use lay jurors, but rely instead on panels of professional experts who receive retainers from the company. 52) And there are thousands of individual judges who hang out a shingle in neighborhoods after registering with the National Regist of Judges and Justices of the Peace, which
requires of its members a minimum (some say minimal) level of legal education and experience. Many of these judges share the ethnic heritage of the community where their offices are located. Many of these judges are
multilingual.
Individuals and businesses tend to avoid judges and judicial systems which lack some significant certification of quality. The
Harvard Law School Guide to the American Judiciary, for example, is one useful source of information (but it is occasionally accused of being somewhat elitist). Who's Who in the American judiciary, published by
a nonacademic publishing firm is another. Others prefer the annual guide published by the Consumers Union (it accepts no advertising), Still others prefer the Whole Earth Catalog of Judges
(though it usually is a bit out of date). The Michelin Guide to International Law Judges uses a five-star rating system. Even with all of these publications providing information about the legal system
that is unavailable to us in our world, newspapers and television "news magazines" never seem to tire of stories about judicial corruption. Such exposes sometimes lead to reforms by the various rating agencies.
To attract business most judges obtain enforcement of their judgments by subscribing to services offered by police
companies. Otherwise only the moral authority of their rulings would induce compliance. Since all law enforcement agencies are legally liable to those who can prove to the satisfaction of a special
appellate system that an erroneous judgment had been imposed upon them, Surprisingly, however, not every judge utilizes the services of an enforcement agency. The American Association of Adjudicators (AAA) does not promise enforcement but only a fair and just decision.
All parties must contractually agree to binding adjudication in a form recognized as enforceable by other courts who do have enforcement arrangements and who will only on rare occasions fail to summarily honor an AAA
adjudicator's decision. Other judges don't rely even indirectly on law enforcement agencies. In some discrete communities-like the diamond trading community in our world whose judges apply a variant of Jewish law-social
sanctions are all that are required to effectively enforce judgments. The enforcement agencies
themselves tend to specialize in what we be call criminal and civil cases. The distinction between these areas is not considered to be a theoretical matter, but turns instead on the differing enforcement problems that
necessitate a division of labor. Those firms specializing in "criminal" matters either catch criminals or provide work to those who may not be able to earn enough to satisfy the judgment against them if left on
their own. The "civil" agencies must be adept at sorting through paper arrangements to locate assets that can be legitimately seized and sold to satisfy judgments. Occasionally, when a civil agency is done
with a convicted defendant, the case must be turned over to a criminal agency to collect the balance. To be sure, conflicts between enforcement agencies have arisen. Most have been quickly resolved by the agencies
themselves. Some have required other agencies to intervene. In addition, all law
enforcement agencies subscribe to one of two competing computer networks that gather and store information about individuals who have been convicted of offenses (in much the same manner as government police departments and private
credit rating agencies share information in our world). Such services provide their clients with near instantaneous information about individuals and firms that they might be contemplating doing business with (something like
the information that local Better Business Bureaus in our world claim to provide) and persons whom they might consider excluding from their property.
While it does not directly concern the legal order, some may be interested to learn that most common
areas in this world are as accessible as private shopping centers and other commercial and residential developments are in ours. Smaller parks, however, tend to be for the exclusive use of those neighborhood residents and
their guests who pay annual fees; larger parks issue single admission tickets and season passes. People who do not use the parks at all are free to spend their money on other goods and services.
Intercity highways charge tolls. Urban commuter highways issue license plates that vary in price
(and color) depending on whether or not they can be used during "rush hours." (Price rationing has eliminated regular traffic jams. For example, as with long distance phone service, usage between 8:00 p.m. and 6-.00
a.m. is heavily discounted.) Tourists can obtain temporary permits at outlying toll booths. Some firms in this world are now experimenting with electronic systems that monitor highway usage-with rates that can more precisely
reflect such factors as distance, time, and day-and send monthly bills to users. With road use subject to market pricing, competing private train and bus firms seem to do better in this world than in ours, where road use is
rationed by gas prices and a queue. All new commercial and residential developments must build their
own roads, and all leases and land titles include both contractual rights of access and stipulated maintenance fees. Ownership of formerly public streets has been assigned to road companies. Stock in these companies
belongs to those who own commercial or residential property adjacent to the streets, and these property owners also receive contractual rights of access and egress. These companies have continued to merge and break up with
one another until their sizes and configurations are economically efficient. (Aside: What now follows is a worse case scenario offered
only to show the stability of such a legal order. What makes the story particularly unlikely to occur in a nonmonopolistic legal order is that its ending would be so easily foreseeable.)
Some years ago, one quite serious problem with the legal system did develop, however. About ten years after the monopoly legal system
was ended, "Top-Cops," one of the country's largest law enforcement agencies (commanding about one-third of the national market in protective services) merged with justice, Inc., one of the largest court systems.
Many observers were quite disturbed by this development, and the other judicial companies and law enforcement agencies also became concerned. Since the merger violated no one's rights, no legal action against this new
institution could be taken. The fears, however, turned out to be well founded. Initially the operation of this organization
appeared to be unobjectionable, but after a time rumors began to circulate that when subscribers to TopCops came into conflict with subscribers to other agencies, Justice, Inc., sided with TopCops in some highly questionable
decisions. In response to these rumors, both the Chief Judge of justice, Inc., and the corporate president of TopCops denied that any lack of fairness existed, and they publicly promised an internal investigation. Still
the rumors persisted and took a new turn. Officers of TopCops were said to have been accused of committing crimes, but justice, Inc., rarely if ever found for their accusers.
Unbeknownst to the general public, in response to these rumors a secret task force was formed by a consortium
of major rival enforcement agencies and court systems to devise a strategy to deal with the problem. (It was thought at the time that secrecy was important so as not to shake the faith of the general public in the legal structure
as a whole.) The following policies were quietly adopted and implemented:
First, no subscriber of a court system belonging to the consortium would submit to the
sole jurisdiction of justice, Inc. This had not been the usual practice formerly because avoiding duplicate legal actions saved costs for both sides. Second, all decisions of justice, Inc., that were in conflict with a
decision of a court belonging to the consortium were to be automatically appealed to a third court system according to the appellate structure established by the Cambridge Convention (of which Justice, Inc., was a member).
Finally, no decision of justice, Inc., that conflicted with that of a member court would be recognized and enforced by a member law enforcement agency.
Smaller court systems and law enforcement agencies quickly got wind of the new policy and began emulating it. The immediate consequence of these actions
was a drastic increase in the adjudication and enforcement costs incurred by justice, Inc., and TopCops. A backlog of cases began to develop, and the rates of both companies eventually had to be raised. As a result,
subscribers began switching to alternative services, A major faction of the board of directors of TopCops resigned when the board refused to adopt any significant reforms. Instead, the remainder of the board voted to sever
their affiliation with the Cambridge Convention and began to search for alliances with other companies. (The true reason for this apparently irrational behavior was discovered only later.)
Several small enforcement companies and even one medium size company were induced to affiliate with TopCops, forming the Confederatio
of Enforcenient Agencies. It was rumored that some had been intimidated to affiliate. These alliances, however, did little more than make up for the steady drop in both subscribers and revenues. At its
zenith, the entire Confederation controlled about a third of the enforcement market-about the same share of the market that TopCops alone had previously controlled.
In response, the Cambridge Convention formally severed relations with the members of the Confederation and went public with its factual
findings. Notwithstanding the Confederation's public protests, its already jittery subscribers began to repudiate their contracts in large numbers. The Confederation first announced that it would no longer give
pro rata refunds for subscription fees. When resignations nonetheless persisted, the Confederation announced that because they were a result of "unfounded panic," it would not recognize them as valid until the
"rumormongering" of the "Cambridge Cartel" ceased. Then a new and frightening story broke. It
was learned that the board members of TopCops who had pioneered these developments were secretly affiliated with members of the remnants of the old "organized crime syndicate." Since all victimless crimes-crimes involving
drugs, gambling, prostitution, pornography, and so on-had long ago been abolished, the syndicate's power and income had drastically declined. It obtained what income it received primarily from organizing and attempting to
monopolize burglary, auto theft, and extortion activities. Of course, even these activities were not as profitable as they had once been because preventative law enforcement efforts had greatly increased, and the corruption
of law enforcement officers had become much more difficult. Hence the scheme to infiltrate TopCops was hatched.
A search by independent investigative journalists of the court records made available by the consortium revealed that the
syndicate-affiliated criminals had received unjustifiably favorable treatment by Justice, Inc. With this news, the Cambridge Convention communicated the following extraordinary order to all
law enforcement agencies and to the general public:
No order of justice, Inc. is to be recognized or obeyed. Free protection is to be extended to any subscriber of TopCops who is threatened in anv way. Any victim of a burglary or auto theft whose case had been adversely decided by Justice, Inc,, is entitled to a re-hearing, and all previously acquitted defendants in such cases are subject to immediate re-arrest and re-trial. All TopCops employees are to be placed under immediate surveilance.
With this action, justice, Inc.,
was forced to close its operations because of lack of business. The remainder of TopCops' honest subscribers repudiated their affiliation, and scores of burglars and auto thieves were placed under arrest. (Several of TopCops'
employees turned out to have been acquitted burglary and auto theft defendants.) Without a cash flow, and with the risk of personal liability now present, TopCops' employees began quitting the company in very large
numbers. Since TopCops had been a national organization, it did not have a single location that was strategically defensible, so there was little armed resistance to the law enforcement actions of the consortium
members. In most instances, TopCops facilities were within a few blocks of other agencies. Within a matter of weeks, the TopCops organization had been disbanded and its assets auctioned off to provide funds to partially
reimburse persons whose rights it had violated. Soon, offices formerly operated by TopCops were reopened for business as new branches of other established companies,
The entire unhappy episode had taken not quite six months to unfold, but some important lessons were learned.
First, the initial euphoria surrounding the abolition of the archaic monopoly legal system was tempered. People realized that a nonmonopolistic legal order was no panacea for the problems of law enforcement and
adjudication. Diligence was still required to prevent injustice and tvranny from recurring. Second, the Cambridge Convention announced that in the future it would not recognize any court system created or purchased by a
law enforcement agency. Court systems were still able to administer a ' small enforcement contingent, but strict guidelines were formulated for such arrangements. Third, organized burglary, auto theft, and extortion
rings had been dealt a serious financial blow. (They still persist, however.)
Finally, after all the turmoil and talk of "crisis" had subsided, most people came to realize that their new legal order was far more stable than many of the "old guard" who had grown up under the ancient regime
had expected it to be. The entire unhappy incident had unfolded in a matter of months and had been successfully and largely peacefully resolved. And this realization extended to members of the law enforcement community
as well, making any future forays into aggressive activities much less likely than ever before.
Conclusion: Beyond Justice in a Free Society
We are now in a position to provide new answers to the three problems of power that were posed in the first installment: 54
Who gets the power? Those
court systems whose jurisdiction people agree to accept and those law enforcement agencies to which people are willing to subscribe. How do you keep power in the hands of the good? By permitting people to withdraw
their consent and their financial support from those who are perceived to be corrupt or to be advantage-takers and letting them shift their support to others who are perceived to be better. The potentially rapid swing of
resources and the ability of law-abiding organizations to organize their resistance to aggression can help assure that swift preventative measures will be smoothly implemented.
How do you prevent holders of power from receiving undue legitimacy? No nonmonopolistic court would have any special legal privileges. Stripped of the legitimacy traditionally accorded rulers, private court systems
would be constantly scrutinized to detect any selfserving behavior. Their legitimacy would depend solely on their individual reputations. While a tradition of integrity would heavily shape a reputation, an effective
court system would need to ensure that its current practices and policies did not jeopardize its reputation in any way.
Two final questions remain to be addressed. First, how can we expect that the substantive rights and remedies suggested by a Liberty Approach will be the law adopted by a nonmonopolistic legal order? After all, these rights go far beyond the simple abolition of monopolistic legal jurisdictions.
Second, while acknowledging that only a summary description of a Liberty Approach has been presented here, even the most open-minded reader
is likely to have a lingering doubt. There may remain a sense that a Liberty Approach-even if it operated as advertised-may somehow not be enough;
that to achieve the kind of society to which we aspire requires more than the rights, duties, and legal order of a Liberty Approach. In an
important respect, I think that such a doubt is entirely justified. A Liberty Approach alone is not enough to ensure that a good society will be achieved-a world with culture, with learning, with wisdom, with generosity, with
manners, with respect for others, with integrity, with a sense of humor, and much more. A Liberty Approach neither includes such values in its prescriptions nor seems to assure that by adhering to its prescriptions such a
world will be attained. So what does a Liberty Approach have to offer to those who share these values?
Lon Fuller once distinguished between two moralities-the morality of aspiration and the morality of duty:
The morality of aspiration ... is the morality of the Good Life, of excellence, of the fullest realization of human powers. [A] man might fail to realize his full capabilities. As a citizen or as an official, he might be found wanting. But in such a case he was condemned for failure, not for being recreant to duty; for shortcoming, not for wrongdoing....
Where the morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark.... It does not condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead, it condemns them for failing to respect the basic requirements of social living. 57
A Liberty Approach,
if correct, is a morality of duty. It purports to specify what justice is and how it may best be pursued. It is not an entire ethical system for achieving a good society. Adherents to a Liberty Approach seek to
identify "the basic rules without which an ordered society is impossible." They believe that to legally require any more than this-to attempt to enforce a morality of aspiration as we would a morality of duty-will
ultimately undermine both projects. They do not deny that more than justice is important. Nor do they deny that the pursuit of justice will be influenced by the extent to which people adhere to a morality of
aspiration. But they believe no less firmly that the framework of justice provided by a Liberty Approach offers humankind the best opportunity to pursue both virtue and justice.
If the morality of aspiration is not enforced by a coercive monopoly in a Liberty Approach, then what kind of institutions would
enforce it? In a society that rigorously adhered to a Liberty Approach, the so Are such voluntary institutions enough? We have no way
of being sure. But, as I have repeatedly stressed here, a system based on the Power Principle offers no guarantees either. Even an ideally wielded coercive monopoly of power is only as "good" as the persons
wielding the power. But power corrupts those who wield it, and virtue is its first victim. Our values come not from coercion but from the exhortations and examples set by countless individuals and groups.
The rights, remedies, and legal order specified by a Liberty Approach will not end all injustice. There will
always be injustice, just as there will always be corruption and advantage-taking. But although a Liberty Approach offers no guarantees, it does enable us to better pursue justice in a free society by providing a clear
idea of what we are pursuing and how we may best pursue it without undermining our precious freedom in the process. For those who believe in liberty and justice for all, a Liberty Approach may be an idea whose time has come. I wish to thank Lewis
Collens, David Gerber, David Gordon, William Heffernan, and Henry Veatch for reading and commenting on an earlier draft. This article grew out of lectures that were given at a series of seminars sponsored by the Institute for
Humane Studies at George Mason University. I am very grateful to Walter Grinder and Leonard Liggio of the Institute for all their support and encouragement and to George Smith for the discussions that influenced this paper in
many important respects.
Two vitally important features of private giving militate for keeping charity voluntary, even if it were certain that less giving would
take place. First, private charity will tend to be far more efficient in assisting the needy than government charity. Private charities have to answer directly to their donors. If they fail to adhere to the
donors' intentions, their contributions will dry up. By comparison, government 11 welfare" agencies have little or no such incentives. Second, the donor as well as the donee benefits from voluntary giving.
Choosing to give to others gives satisfaction to the donor and, if such acts become habitual, can permanently improve the donor's character. Coerced giving, by contrast, breeds resentment toward the donee and can lead to
class division and conflict. Ultimately, we risk undermining the charitable instincts that motivated political support for forced giving programs. Were this ever to happen, forced giving programs would not long survive.
We have witnessed an analogous development with the increasing public support for a "good faith" exception to
the exclusionary rule. The exclusionary rule creates an unnecessary conflict between the protection of individual rights and public safety. See Barnett, Resolving the Dilemma of the Exclusionary Rule: An
Application of Restitutive Principles of justice, 32 EMORY L. J. (1983) (describing this conflict and evaluating the deterrent effects of a restitutive remedy for police misconduct). Unyielding proponents of the
exclusionary rule have, by forcing a choice between procedural rights and personal security, seriously undetermined popular support for the former. R. FIELD & B. KAPLAN, CIVIL PROCEDURE 199-200 (3d ed. 1973). The
impetus for developing this elaborate set of rules, principles, and theories was simply to resolve the inevitable conflicts between geography-based jurisdictions. This indicates that one way to greatly reduce the incentives for war-as well as the incentives to develop and use weapons of mass destruction-is to end all monopoly legal (and political) systems and sufficiently intermix the
competitive legal systems that supplant them so that there is no "over there" to conquer and no one has the authority to surrender for anyone else.
In practice, those who adopt the nirvana viewpoint seek to
discover discrepancies between the ideal and the real and if discrepancies are found, they deduce that the real is inefficient. Users of the comparative institution approach attempt to assess which alternative real
institutional arrangement seems best able to cope with the economic problem; practitioners of this approach may use an ideal norm to provide standards from which divergences are assessed for all practical alternatives of interest
and select as efficient that alternative which seems most likely to minimize the divergence.5 See Barnett, supra note 1, at 63-64.6 See R. Nozick, ANARCHY, STATE AND UTOPIA 28-35 (1974). See also Introduction to ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 1-25 (R.
Barnett & J. Hagel III eds. 1977) (discussing the relationship between social goals and individual rights in the context of criminal justice).7 See Furubotn & Pejovich, Property Rights and Economic Theory: A Survey of recent Literature, 10
J. OF ECON. LITERATURE 1137 (1972) (discussing the literature analyzing property rights structures and the connection between ownership rights, incentives, and behavior).8 See Hardin, The Tragedy of the Commons, 161 Sci. 1243 (1968). For the view of a state
supreme court judge that the present court system is an example of a commons problem, see R. NEELY, WHY COURTS DON'T WORK 164 (1983). ("Since the courts are available free of charge, they are overused, and the result is
justice-defying delays.")9
Even those who place an inordinately high value on protecting resources for the benefit of future generations must still place some value on the benefits resources can provide for presently living human beings.10 See Barnett, supra note 1, at 58-59. See, e.g., Demsetz,
The Exchange and Enforcement of Property Rights, 7 J. OF LAW & ECON. 11, 18 (1964) (private property is useful "in revealing the social values upon which to base solutions to scarcity problems. . . . This valuation
function is related to but distinct from the incentives to work provided by a property system......... ); Demsetz, Some Aspects of Property Rights, 9 J. OF LAW & ECON. 61, 65-68 (1966) ("insisting on voluntary
consent tends to produce information accuracy when many cost and benefits are known only by the individuals affected. . . . The marginal cost and benefit curves associated with a prospective realignment of resources is not
known to the government. . . . The primary problem of the government is the estimation problem.")11 See D. LAVOIE, NATIONAL ECONOMIC PLANNING: WHAT IS LEFT? 51-87 (1985) (describing the "knowledge problem" facing nonmarket institutions).12 See, e.g., Demsetz, Some Aspects of Property Rights, supra note 10, at 62
("A private property right system requires the prior consent of 'owners' before their property can be affected by others").13 See B. BENSEN, PRIVATIZING LAW AND ORDER (forthcoming 1986) (describing contemporary and historical
instances of private law enforcement).14
However, minorities and strangers may suffer in such settings far more than they would in a regime of private property. Neither a Liberty Approach nor the Power Principle can guarantee that irrational prejudice will not make some worse off than they would otherwise be. In either system, if a critical mass of persons persists in hating certain persons or groups, these groups can be expected to suffer. However, even persecuted minorities fare far better in a regime of individual private property rights for two reasons. First, they may own private property and reap the many benefits of such ownership. Throughout history, Jews were prevented by the governments of many countries from owning land. Slavery and apartheid are two governmentally enforced systems that also restrict property ownership. Slavery goes so far as to legally enforce the claims of some persons to own others. Nonmonopolistic law enforcement of a com!
plete range of property rights can only
increase the well being of such persecuted groups. Second, a free market permits those members of the majority who treat
minorities fairly to profit from such transactions, thereby always ensuring that powerful economic incentives exist to erode any barriers that prejudice may erect.15 Ask yourself whether a smart
public policeman who saw a suspected burglar (in a public alley behind your house) would stop him before he entered the house-that is, before a crime had been committed-or would he wait instead until after the burglary was
in progress? Is it not perverse that public law enforcement makes standing by until a crime is being committed the smart way to prevent crime?
16 But see Barnett, supra note 1, at 71 n.45 (citing adherents to a Liberty Approach who would extend legal sanctions beyond restitution).17 For more on the harmful effects of illegalizing victimless conduct,
see Barnett, Public Decisions and Private Rights, 3 CRIM. JUST. ETHICS 50 (Summer/Fall 1984). The analysis of drug laws and victimless crimes presented there will be greatly expanded in Barnett, Curing the
Drug Law Addiction: The Hidden Side Effects of Legal Prohibitions, in DEALING WITH DRUGS (R. Hamowy ed., forthcoming in 1986). 18
See infra note 24.19 L. FULLER, THE MORALITY OF LAW 123 (rev. ed. 1969).20 See Barnett, supra note 1, at 56-67.21
The philosophical claim that "taxation is theft" is, of course, controversial. The attempt to refute this claim by pointing to circumstances where the seizure and even the destruction of private property is allegedly justified to prevent a disaster from occurring is inapt. It is one thing to attempt to justify the destruction of a house to save a town from burning down. It is quite another to attempt to justify the systematic extortion of money to provide a "service" of police protection. The former describes a state of emergency. The latter does not. Normal rights theory is determined with normal social conditions in mind. Fortunately we do not live in a constant state of emergency. If we truly did, if life were really a perpetual "lifeboat situation," social order based on individual rights would probably be impossible. Happily, this is not the case.
22
Not all advocates of the Liberty Approach are in agreement on this point or on the analysis presented in the balance of this article. Robert Nozick, for example, devoted the first part of ANARCHY STATE AND UTOPIA (1974) to an attempt to show how a monopoly legal system-the so-called night watchman state-could arise without violating anyone's rights. For refutations of his argument that are consistent with the Liberty Approach presented here,
see M. ROTHBARD THE ETHICS OF LIBERTY 229 (1982); Barnett, Whither Anarchy? Has Robert Nozick justified the State? 1 J. LIBERTARIAN STUD. 15 (1977); Childs, The Invisible Hand Strikes Back, 1 J.
LIBERTARIAN STUD. 23 (1977). As this article goes to press, a new argument defending taxation and government law enforcement within a Liberty Approach has appeared. See R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND
THE POWER OF EMINENT DOMAIN (1985).23
It is assumed here that law enforcement and judicial services are not, as some have argued, "public goods"-a category of goods and services that for technical economic reasons are said to be unobtainable in a free market.
See, e.g., J. BUCHANAN, THE LIMITS OF LIBERTY 109 (1975) (" 'law' of the sort analyzed here qualifies as a pure collective consumption or public good"). I plan to address this issue in a future essay.