To Serve and Protect
by Bruce L. Benson
Reviewed by Roy Halliday
(to table of contents
of archives) (to start of article)
Outline
introduction
Historical Precidents
for Private Law Enforcement
-Law in Anglo-Saxon
England
-Law in England after
the Norman Conquest
-Law in the American
Colonies
-Law in the United
States for the First 100 Years
Private Legal Services
in the United States Today
-Private Security
-Private Courts
-Neighborhood Vigilance
-Private Streets
Pitfalls of Privatization
Hiring Criminal Services
The Theory of Restitution
Conclusion
In To Serve and Protect: Privatization and Community in Criminal Justice, Bruce Benson argues for privatizing the American legal system (including police, courts, and prisons) and adopting a revised version of the old Anglo-Saxon system under which crime victims have a right to restitution from criminals. Benson describes the pros and cons of some measures that would reform the American legal system to allow more privatization. He also explains the fully privatized legal system that he advocates, which would require changes in the law to allow individuals to sell some or all of their right to restitution and to allow private ownership, management, and policing of roads and all other "public" property. Benson’s restitution-based legal system fits well with the system promoted by Randy Barnett in The Structure of Liberty (see my review in Formulations Vol. VI, No. 4); they have the same advantages and are supported by some of the same arguments.
Compared to the current legal system in America, which imposes the costs of investigations, trials, and prisons on innocent taxpayers and does little to compensate victims of crime, Benson’s victim-restitution system is more fair and more libertarian because: (1) it eliminates all victimless-crime laws, (2) it helps victims of crime to recover from the losses inflicted on them, and (3) it makes criminals bear most of the costs of crime investigation, court proceedings, restitution, and incarceration. With regard to preventing and negating crime, Benson’s privatized justice system is more efficient than the current legal system because: (1) victims can receive compensation quickly by selling all or some of their right to restitution to agents who are in a better position to capture criminals and extract restitution from them, (2) competition and the profit motive made possible by the markets for these services will lead to improved methods of crime prevention, crime investigation, court proceedings, restitution, and incarceration, and (3) the prospect of compensation gives victims more incentive to report crimes and to cooperate with the private police and courts.
Benson’s system is not merely hypothetical. He cites many examples to show that the government-run legal system in America is so broken that private alternatives are popping up all over the country in spite of government efforts to hamper them. Furthermore, Benson explains that victim-restitution-based law has worked well in the past (in Anglo-Saxon England for example) and that it works well now in Japan.
Many of Benson’s points about the efficiency of privately produced services are simple, common-sense conclusions, but he backs them up anyway by citing study after study. He aims his arguments at potential reformers of the American legal system in the hope that his data and logic can help overcome the resistance of entrenched groups who have a vested interest in the current system. Perhaps out of deference to this audience, Benson makes his case without appealing to emotions or conscience. Laws for Benson, are simply rules of a game—they are nothing to get excited about. Life, it would seem, should not be taken personally. In fact, Benson makes his case for liberty, justice, and individual rights with less passion than some others exhibit in arguing over the designated-hitter rule in baseball. I don’t care for this dry approach, but maybe it is appropriate for Benson’s primary audience.
Even if Benson’s scholarly and respectful
manner of pleading for more justice from the American judicial establishment
is in vain, and even if his facts and polite arguments turn out to be wasted
on American opinion molders, his research still provides a lot of ammunition
for libertarians who want to create a free nation somewhere. He gives us
the historical background of private law enforcement and provides information
about current, market-supplied legal services that support the idea that
a free (libertarian) nation is viable.
Historical Precedents for Private Law Enforcement
Private law enforcement preceded law enforcement by the state. In fact, state responsibility for law enforcement is a relatively new phenomenon in European history. The state got involved after monarchical government replaced the mediaeval system:
Law in Anglo-Saxon England
Benson gives us a brief history of Anglo-Saxon law, which Germanic raiding parties brought to England around 450 A.D. The raiders were freemen who chose to follow war chiefs based on their confidence in the chief’s ability to lead them in land-grabbing and looting. The law among these pirates was a contractual arrangement between the chiefs (kings) and their followers.
The contractual arrangement among these thieves obligated the king to provide his followers with "battle equipment, food, and war booty (including land) in exchange for their support in war." (202) As is typical of those who believe rights derive from contracts rather than being an inherent part of man’s nature, the pirates regarded their victims as being outside the law and therefore as having no rights. Since the Anglo-Saxons had made no contract with the earlier inhabitants of England, how could it be wrong to invade England, kill the inhabitants, and take their property?
The tenure of Anglo-Saxon kings was temporary. It only lasted if warfare continued and the kings were able to persuade men to follow them into battle. "Kingship was contractual rather than hereditary, and appointment of a successor was not automatic; nor was a kingship considered a position for life." "In fact, the word king derives from the Old English word cyning, and the earliest records use the phrase ceosan to cyninge, which means ‘choose as king.’" (202)
Unfortunately for those Anglo-Saxons who moved to England, warfare between the various Anglo-Saxon kingdoms was almost continuous from 450 to 600 A.D. And why not? The contracts that established obligations were within kingdoms rather than across kingdoms. No kingdom had an obligation to respect the property of other kingdoms—so they fought to take land from each other. The victorious kingdoms grew in size as the number of kingdoms declined such that by 600 A.D. England was divided into seven regions controlled by fairly well established dynasties.
Meanwhile there were apparently some people who engaged in farming and other peaceful pursuits. These people were not part of the contracts with kings. Instead their rights and obligations toward each other were determined by the customs that the Anglo-Saxon invaders brought to England. Traditionally, neighbors helped victims catch criminals out of friendship and because they might need reciprocal help in the future or had received such help in the past.
In the Anglo-Saxon legal system, all offenses were basically treated the way torts are treated in American civil courts. That is, the guilty party was punished by making him pay restitution to his victim. Even those found guilty of murder were punished by being required to pay money to the victim’s family. For large restitution payments, offenders were given up to a year to pay or they were made indentured servants of the victim’s family.
If an accused individual refused to submit to a trial, the accuser and his supporters could legally kill him. If either the accused or the accuser refused to accept the decision of the court, he was "ostracized by society in general, and physical retribution became the responsibility of the entire community." This sometimes resulted in blood-feuds when the accused’s family backed him up against the onslaughts of those supporting the accuser. (200)
Today this so-called voluntary system of justice is not only unacceptable to the entrenched establishment, it is not acceptable to most Americans. Benson recognizes that our society is too secular to unite behind the idea of trial by ordeal as an appeals court run by God. But that is not the only problem. Another problem is that the American population is too large, diverse, and mobile for ostracism to work as well as it did in the small Anglo-Saxon communities of England in the first millennium. (It is hard to get away with a crime if you can’t get away.) Another problem, for me at least, is that American juries are too extravagant with other people’s money. Having heard horror stories about absurdly high awards given by juries to plaintiffs, I don’t want to see criminal law follow the model of American civil law.
Another problem is that modern Americans are too horrified by involuntary servitude and debtors prisons to condone them as means for restitution, even though if you think about it, such forms of slavery can be more humane than sanctions that have more support in America such as imprisonment and capital punishment. In some cases, if the restitution owed is not beyond the person’s abilities, his sentence in a debtors prison is self-determined. The harder he works, the sooner he pays off his debt and the sooner he regains his freedom. There is a sort of poetic justice in this.
The major objection I have to the traditional Anglo-Saxon system of law is the same objection I have to the contracts between Anglo-Saxon kings and their followers: both of these arrangements are based on the assumption (which Thomas Hobbes revived centuries later) that people have no obligations other than the ones they create through contracts and, therefore, that it is all right to pillage, rape, and murder strangers, foreigners, and any others who have not made a specific contract with you or who have opted out of their contract. In other words, the Anglo-Saxon rules are based on the denial of natural rights.
As evil and barbaric as Anglo-Saxon law is, it compares favorably with American law in some respects. The primary advantage Anglo-Saxon law has is that it aims at restitution to the victim, whereas American criminal law is based on coercive control of the public through government legislation and administrative regulations that often define crimes that have no victims and that are enforced by fines, compulsory rehabilitation programs, prison sentences, and executions. Another advantage of the traditional Anglo-Saxon system of law is that it keeps politics and the corruption of officials that characterizes most politically run activities out of the legal process.
Benson briefly explains the devolution of English law from privately enforced, restitution-oriented law to state-enforced, punishment-oriented law.
As the number of kingdoms got smaller and the size of the remaining kingdoms got larger through conquest and consolidation, kings began to centralize power and take on the role of lawgiver.
Law in England after the Norman Conquest
Things got worse when the Normans conquered England. William the Conqueror seized virtually all the land and established a system of feudalism by granting fiefs to Norman barons and the church in exchange for military support and administrative services.
The Norman kings saw the opportunity to increase their revenues by intervening in non-felony law enforcement, and they were less reluctant than the Anglo-Saxon kings had been to ignore the traditional Anglo-Saxon system of justice.
Henry II laid many of the foundations for the modern system of English law. In stark contrast to the positive interpretation of Henry II’s reign that Arthur Hogue gives in Origins of the Common Law, Benson correctly views Henry II in an unfavorable light. According to Benson, Henry made the English system of law much worse. He wanted to increase his revenues to reinforce his power and to finance his wars, so he had his royal courts take over many of the functions of the county and hundreds courts.
Finally, in the 19th century, government
police forces began to be established, first in the major cities, and eventually
in most municipalities.
Law in the American Colonies
For a brief period in early colonial times, the colonial governments played no active role in arresting and prosecuting lawbreakers, and government courts were often circumvented:
Merchants established their own arbitration
arrangements because the government courts did not apply commercial law
fairly and the proceedings took too long. The use of commercial arbitration
expanded in the 17th and 18th centuries and it continues today.
Law in the United States for the First 100 Years
The rules and procedures used in the government courts in United States were imported from England and were basically the same. But for the first hundred years or so in the United States many people continued to use private means of law enforcement. Some chose to do so because they belonged to special communities that held common beliefs (Quakers and Mormons for example). Merchant communities chose to do so for economic reasons. Frontier associations chose to do so because they were moving west faster than the government bureaucracy. (96)
Wagon trains adopted contracts to establish the rules for the journey and used banishment as the ultimate means of enforcement. (102) Land clubs and claim associations in the west adopted written contracts that specified the rules for registering land claims, enforcing those claims, and settling property-rights disputes. Members of these groups who refused to abide by its rules and court rulings were ostracized and denied protection. (101) Mining camps also created contractual laws that they agreed to mutually enforce. When land suitable for mining became scarce enough to create potential disputes, the miners would gather together and vote to adopt rules. Rules were established by majority vote, but anyone who did not want to accept the rules was free to opt out of the contract for reciprocal protection of rights. "If a minority disagreed with a majority, they could set up their own separate mining district. Thus, those governed by a particular set of laws actually unanimously consented to be so governed." (104)
When government law officers finally arrived in the mining towns, they tried to establish a coercive monopoly on criminal prosecutions. The public generally acquiesced, especially when the government courts honored the claims established by the private laws of the miners associations. But when the government office holders became corrupt, the people sometimes took the law back into their own hands temporarily by creating vigilance committees until justice was reestablished. This happened several times in Montana. (See my review of Vigilantes of Montana in Formulations Vol. VII, No. 2.)
It was not merely coincidental that the government law officers often turned out to be corrupt. Government law was sometimes instituted in the west by groups of entrepreneurial swindlers "who saw opportunity in prospecting in government." (106) These criminals needed a corrupt legal system to protect themselves against prosecution for their murders and robberies, so they used the political means to replace the existing private legal system with a governmental one that they could control.
The first public police department in the United States was established by the Mayor of New York City in 1844. Soon thereafter mayors in other cities followed his example. These early police departments were established for political purposes rather than because of consumer demand, and they were corrupt.
They [police departments] may have
had some impact on crime, but that does not appear to explain their growth
(in many instances the police impact on crime was to facilitate its organization
by accepting bribes in exchange for providing support for powerful criminals’
activities, and the powerful criminals were often powerful politicians).
(225)
Private Legal Services in the United States Today
Nowadays most Americans associate
law and order with the state-run legal system and regard the idea of private
law as unworkable and unjust. They don’t know about our heritage of private
law and they don’t realize the extent to which private law still operates
here. They haven’t read Benson’s book.
Private Security
In the United States, private security is the second fastest growing industry. Private guards patrol residential buildings, neighborhoods, and corporate headquarters and provide security for airports, sports arenas, hospitals, colleges, state and local government buildings, banks, manufacturing plants, hotels, shopping malls, and retail stores. (89)
As for competition, the number of
private protection and detective agencies in the Unites States probably
exceeds thirteen thousand today, and competition is fierce. (171-172)
Private Courts
By 1992 there were more than 50 private, for-profit, dispute resolution companies in the United States. Judicial Arbitration and Mediation Services Company (JAMS), which started in 1979, has grown to be the largest firm in the industry. Civicourt in Phoenix and Judicate in Philadelphia have been settling disputes quickly and inexpensively since 1983. As of March 1987, Judicate employed 308 judges in 45 states. Other firms in the business include the Washington Arbitration Services, Judicial Mediation of Santa Ana, Resolution of Connecticut, and EnDispute, which is the second biggest firm in the industry. EnDispute had an increase in gross revenue of 130% between 1988 and 1992. JAMS had an increase in gross revenue of 826% during the same period. (115-116)
Since the 1960s community dispute resolution programs have been using volunteers to resolve domestic quarrels, squabbles between neighbors, animosities between ethnic groups, and even robberies that the courts find too trivial to bother with. (116-117)
Victim-offender mediation (VOM) is spreading throughout the United States, Canada, and Europe. In 1995 there were about 150 VOM programs in the United States.
Neighborhood Vigilance
Because of the limitations placed on officially recognized private options, less formal institutions tend to dominate private criminal justice. In close-knit neighborhoods, whispering campaigns and ostracism have been used against offenders to induce them to pay their debts or make restitution to their victims. Sometimes neighbors will even break laws as defined by the state and seize or destroy an offender’s property when he refuses to pay his debts. (119)
Organized residents in crime-ridden
neighborhoods have pressured drug dealers and associated violent criminals
to leave. In general, these anti-crime volunteers wear distinctive apparel
such as orange hats (so they won’t be mistaken for drug dealers or their
clients), and they stand watch outside crack houses and on street corners
where drug traffickers and prostitutes congregate. Sometimes they chant
anti-drug slogans, write down license-plate numbers, and carry video cameras
and two-way radios. These activities cause the drug dealers, their clients,
and the potential muggers who prey on customers of drug dealers and prostitutes
to feel uncomfortable and to take their business to less vigilant neighborhoods.
Sometimes these neighborhood groups go beyond libertarian methods by reporting
building-code violations to the city government, causing the city bureaucrats
to serve eviction notices and confiscate crack houses. (119-124)
Private Streets
Many residential developments all around the United States involve private streets and private security arrangements (90). The same is true for many apartment and condominium complexes, enclosed shopping malls, and office parks (92). In 1970, the residents of several crime-ridden neighborhoods in St. Louis, Missouri, petitioned the city to deed the streets to them, and the city complied with the requests "in return for the residents’ assumption of responsibility for street, sewer, and streetlight maintenance, garbage pickup, and security services above normal fire and police protection." (84)
A comparison of crime rates on private
streets with those on adjacent public streets shows significantly lower
crime in virtually every category. (158)
Pitfalls of Privatization
Benson recognizes the dangers involved in privatization. If services are privatized as monopolies, the private services are likely to be almost as inefficiently provided as government services because of the lack of competition. (42) If services are privatized on an open and competitive basis they will be provided efficiently, but this is only a good thing if the service demanded is itself a good thing. Benson explains the point this way:
Hiring Criminal Services
In a libertarian nation, most kinds
of contracts would be honored in private courts, but not all contracts.
A murder contract would not be upheld, nor would any other contract between
two parties to deprive a third party of his legitimate property. Some services
now provided by various levels of the US government deprive people of their
legitimate property and liberty. In a libertarian nation these services
would be abolished rather than privatized. For example, a private company
called Multi-State, which rents narcotics agents to small-town police forces
and which in its first few months of operation arrested 150 drug traffickers
and seized thousands of dollars worth of drugs, would be regarded as a
criminal organization. (19) Another example is Behavioral Systems Southwest,
which runs a prison that deprives 600 to 700 "illegal aliens" of their
liberty on behalf of the Immigration and Naturalization Service. (21) Although
many libertarians disagree with me, I regard the private prisons advocated
by Benson as criminal organizations for the same reason that Murder Inc.
and rent-a-narc companies are illegitimate—they violate people’s rights.
The Theory of Restitution
It is common knowledge that people disagree as to the proper amount of punishment or restitution due in cases of murder, rape, kidnapping, maiming, and other forms of assault and battery. It is less often acknowledged that different opinions are possible in the easiest cases. Consider a case of simple theft. Suppose Mooch steals Brown’s car. According to restitution theory Mooch has an obligation to restore Brown to the condition he was in prior to the car-theft, and Brown has an enforceable and transferable right to obtain restitution from Mooch. If Mooch does not make restitution voluntarily and if Brown does not have the time or resources to extract restitution from Mooch, Brown can sell or transfer all or some of his right to restitution to an insurance company or prison-labor company or any other company or person. The person or company that has the right to restitution can legitimately use force against Mooch to extract the restitution, even if the only way to do so is to capture Mooch and put him in a work-prison. Benson’s theory of restitution encompasses imprisonment of criminals if, and only if, "imprisonment to supervise the criminal as he works off his debt to the victim is the only way to assure payment." (231).
This theory seems straightforward until you start asking questions about the objectively correct amount of restitution. To keep it simple, let’s suppose that Brown by himself tracks down Mooch. Now consider these questions: (1) Should Mooch return the car to Brown? (2) Does Mooch own Brown compensation for the amount of time Brown was deprived of his car? (3) Does Mooch owe Brown reimbursement for the costs of investigating the crime and tracking him down? (4) Does Mooch own Brown compensation for the emotional trauma caused by Mooch’s crime? (5) Does Mooch deserve to be punished in addition to his obligation to make restitution? Different theories of restitution are defined by how many of these questions are answered in the affirmative and by whether an affirmative answer implies an enforceable right (call this a hard yes) or merely a recommendation to the offender (a soft yes).
A total pacifist would answer each question with either a soft yes or a no. I would give a hard yes to the first question and a soft yes to the others. For criminal debtors like Mooch, Benson gives a hard yes to all five questions. For non-criminal debtors Benson gives a hard yes to the first four questions and a no to the fifth:
My reason for giving soft-yes answers to the last four questions about the car thief is that I do not believe crime and restitution can be quantified with the precision necessary for enforceable rights. This is not a problem for Benson because in his view the right to restitution negates the rights of the criminal. Benson is willing to go along with whatever rules for restitution are acceptable to the majority in a particular culture.
To determine the level of restitution
that will diminish the incentives to falsely accuse and provide effective
marginal deterrence of crime, Benson seems to advocate that we experiment
with people’s rights as though life were a video game that were inventing
and we can play the restitution game under different sets of rules to find
out which version of the game is the most fun. Benson has confidence that
competition in the private justice industry in the free market will produce
better and better rules for restitution. I would agree with him if he were
referring to voluntary forms of restitution. But when we are considering
forms of restitution that are imposed by force we are no longer considering
an economy with an unhampered, free market. To the extent that the market
for forcible restitution is unhampered, the market for protection services
is restricted. As victims’ rights to restitution wax, the rights of the
protection-services industry to defend debtors wane. Repossession of stolen
property is not an act of aggression, but any use of force beyond that
to obtain restitution or to punish an offender is arguably an aggressive
act. To the extent that restitution and punishment, beyond repossession
of stolen property, are not worked out voluntarily, the overall market
is not free.
Conclusion
Benson’s system of restitution-based justice administered by private enterprise is superior to the current American system of justice, and I suspect it is more acceptable to most radical libertarians than it is to me. It occupies a position on the libertarian spectrum somewhere between my position in which self-defense is the only legitimate excuse for using force and Murray Rothbard’s retributive-justice-plus-restitution position. (See my article "Law and Violence" in Formulations Vol. VI, No. 1 for an explanation of how I classify libertarian theories of law according to the kinds of violence they condone.)
Thanks to Benson’s research this book is full of information of value to anyone interested in establishing a libertarian legal system. Except that I believe restitution should be voluntary rather than forced, I share Benson’s assessment of his hope for the success of this book:
Roy Halliday has written his own
book about criminal justice: Enforceable Rights: A Libertarian Theory
of Justice. It is available at his website http://royhalliday.home.mindspring.com/ROYHOME.HTM
(to table of contents of archives) (to outline) (to top of page)