Category Archives: Criminal Law

Criminal law in a libertarian society

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BarsCriminal laws prohibit (or require) an assortment of activities. If caught disobeying the criminal law, the lawbreaker is punished by the government. Criminal laws are usually written by legislatures and contain two types of crimes: 1) crimes that harm victims (such as murder, assault and theft); and 2) crimes that harm the person or property of no one, except perhaps the criminals themselves.

The latter type outlaws conduct such as drunkenness, gambling, prostitution, drug use, or anything that requires a license when such license has not been granted. Ultimately, a crime is whatever the government says it is.

See somethingA recent and popular trend is to make it a crime for anyone to fail to inform the government if they believe someone else is breaking the law. This trend, now firmly established regarding a few especially despicable crimes such as child sexual abuse, may spread to cover other crimes—and eventually all crimes.

In a nation where informing for the government is mandatory, when you “see something,” you “say something” . . . or else. Such a society would see the full blossoming of the police state and, like the 20th-century residents of fascist and communist states, a healthy fear of one’s neighbors, friends and even family could become a valuable survival skill.

In a libertarian society, the maximum role of the state would be to protect life, liberty and property. The use of defensive force is always legitimate, but the non-aggression principle limits the criminal law to things like assault, murder, theft, fraud, trespass and the like; that is, crimes against persons or their property. As Saints Thomas and Augustine taught, [here, here, and here] the law should not criminalize moral vices or other disapproved conduct, where such conduct does not directly harm others.

Stop fightingA libertarian criminal code would be compact and intuitive. Its function is to ensure peace and tranquility, not to make virtuous people. Instead of needing a lawyer to explain it, children would understand it by the time they were two years old.

[excerpted from Chapter 8 of Free is Beautiful: Why Catholics should be libertarian]

What would we do without the state?

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The most unreasonable objection to libertarianism is the claim that liberty will not fix problem “x” or problem “y.” This objection is made while ignoring the fact that government is not doing such a great job with “x” or “y” either.

A good example is the “drug war” where government prohibition has nurtured a massive black market run by organized, violent criminals. Then the government created a police state to catch, prosecute and house the same criminal gangs that their laws coaxed into existence, all of which is paid for (involuntarily) by the taxpayers; and after which, the problem is worse than when the “war” started.

When we look at it that way, it seems clear that giving liberty a try might no be so bad. After all, could anything be worse than the current situation?

The same question must be asked about other problems. How can we have a peaceful society without government police, courts and prisons? Won’t criminal gangs take over and turn the whole world into Somalia. Many smart people have given reasonable solutions for these problems, but sometimes these are just guesses, because we cannot be sure how a free society will solve every problem.

The worrying question seems to be, if we get rid of the state what will we replace it with? Perhaps we worry too much. As in the drug war, we need to step back and look at what government does and ask: If they weren’t doing this stuff would the world be better or worse? So–for the moment–forget drugs. Forget homosexual unions, gambling, prostitution and animal cruelty. Let’s cut straight to the gold standard of evil: Murder.

Individuals can be shockingly evil, and the harm they do to each other is in the news every day. The notoriety of serial killers lives long after them.

Jeffrey Dahmer murdered 17 victims; John Wayne Gacy killed 23; Ted Bundy, 35; and there were the Columbine and Colorado movie theater killers. History records many such monsters, some believed to have killed hundreds. Such horrors could seem insignificant, however, when set against the death toll when governments go to war.

In the 20th century, governments exceeded all previous wars by destroying more than 60 million human beings in World War II. In World War I, there were 10 million dead, not counting civilians. Dozens of wars have killed a million or more people. Even history’s most infamous serial killer, Soviet Major General Vasili Blokhin, in shooting 7,000 Polish officers in the space of 28 days in 1940, reached that record only with the aid of his government. Thirty of Stalin’s NKVD agents were needed to bring the victims before Blokhin and then remove their bodies.

Finally, even war cannot match the most prolific murderers of history: government against its own citizens. R.J. Rummel, in Death by Government, estimated that in the 20th century, mass murder, genocide and political murder by government caused the death of 169 million souls, not including war dead.

Compared to the state, mankind’s most accomplished serial killers have been embarrassingly ineffective.

So back to our question: If we get rid of the state what can we replace it with?

Does it matter?

Ignorance of the law is no excuse

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There is a legal principle that arose long ago: Ignorance of the law is no excuse. This principle prevents those charged with violating the law from claiming they did not know about the law. If a person could escape liability by such excuse, wrongdoers could seldom be punished.

This maxim is not as unfair as it seems where the criminal law is only used to prevent and punish harm to other people. In those cases, it hardly matters whether a person knows exactly what the written law says. He already knows that if he is harming someone’s person or property, he must pay for the harm done.

At this basic level everyone “knows” the law, so ignorance is no excuse, but today we have the opposite situation. Ignorance of the law has never been more widespread because the criminal law now prohibits so much conduct that is not intuitively evil. The law punishes all sorts of conduct that doesn’t hurt anyone (except perhaps the defendant himself) and it is no longer obvious what conduct is criminal and what is not. Without the non-aggression principle operating as a standard by which all may measure their actions, ignorance of the law becomes common and inevitable.

This situation is only aggravated by the sheer enormity of the criminal code. The Federal Criminal Code and Sentencing Guidelines alone consume almost 2500 printed pages. This does not include the various state codes, county and municipal ordinances.

No one—not even criminal lawyers—ever read the whole code. When the police arrest someone, they may have only a rough idea as to what crime (if any) has been committed. They learn to look through simplified charging manuals to find a crime to fit the conduct. Often enough, the police get it wrong and prosecutors must dig into the big books to make the defendant’s conduct fit under some law. Since even police and prosecutors must consult the laws to charge crimes, what hope does anyone else have of obeying all the laws when so many have no apparent connection to the golden rule?

The “ignorance of the law” maxim has never been more unfair than it is today. At the same time, it has never been more essential to the operation of the criminal courts. If ignorance of the law were an excuse, the courts would be in chaos.

How many people know how easily their everyday actions can result in a criminal conviction? Here are a token few among the thousands of crimes we may unwittingly commit:

  • Possessing a baby raccoon.
  • Burying a deceased pet in one’s own yard.
  • Raising arms while riding a roller coaster.
  • Sending annoying internet messages without identifying oneself.
  • Releasing a swine
  • Logging onto Google with a pseudonym.

Since no one can escape them all, we all become unwitting criminals. Ignorance may be a universal given, but it is never permitted as an excuse.

[excerpted from Free is Beautiful]

Father Cummings and the Loyalty Oath

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“We must obey God rather than men!”

This may be  the only possible response when government abuses its power.

Click below for my article at Lew Rockwell.com about one Catholic priest who stood against the government and suffered for the faith:

Saying No
to a Government
Loyalty Oath

Libertarian does not mean libertine

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Why do so many think that libertarians are “anything goes” libertines? Many conservatives believe that libertarians are really just liberals. Many liberals insist that libertarians are really just conservatives. How can it be both? It is wrong to say–as some do–that libertarians are “socially liberal and fiscally conservative.” These views stem from confusion about morality and criminality, such that our modern society has lost the ability to distinguish between vice and crime. Even worse, many so-called crimes are not vices at all.

Conservatives and liberals alike want to use government to force everyone to conform to their view of morality. And each would like to hold the whip against the other, and nobody is happy with the way things are.

This is because we have ignored what St. Augustine and St. Thomas Aquinas wisely taught: that punishment for crime should be limited to conduct that harms others (i.e., “theft, murder and the like”). Beyond that, neither individuals, nor the government have the right to punish or force people to do whatever the state tells them.

As to what is moral conduct, libertarians are just as variable as the population as a whole. Libertarian Catholics do not dissent from Church teachings. They embrace them. They hope and pray that others do likewise, but they refuse to use force (whether individual or collective) to make others conform to Christian morals. Only defensive force is legitimate.

That does not mean, however, that a free society would be an “anything goes” society. If drug addiction or prostitution were treated as health and moral issues—rather than as criminal issues—most families would still not want to see them on their streets. People will rightly have their preferences as to church, society, friends and the neighborhoods they live and work in. In later posts, we will see that a libertarian society would be more conducive to a moral lifestyle, not less; more supportive in the raising of families according to our beliefs and our purpose in life.

St. Augustine, vice and the criminal law – Part 1

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ST. AUGUSTINE, BORN IN 354 A.D, WAS BISHOP OF HIPPO IN NORTH AFRICA. He is best knwon for his autobiography Confessions  (398 A.D.) and his later work, The City of God.

St. Augustine taught that mankind is divided into two groups or “cities,” the City of God and the City of Man. Inhabitants of the City of God have their will and reason turned toward communion with God. The City of Man looks to purely earthly ends, yet these groups are “commingled” in this life, just as the wheat and the chaff grow in the same field until the Judgment Day.

This creates a pluralism of moral and religious values that will persist until the end of the age. There can be no common agreement as to every right and wrong, except for a common desire for “the sweetness of peace which is dear to all,” and the “tranquility of order.” [City of God, XIX:11, 13]

Here again, one sees that same common ground inherent in the non-aggression principle. Augustine wrote that, “peace is a good so great, that even in this earthly and mortal life there is no word we hear with such pleasure, nothing we more strongly desire, or enjoy more thoroughly when it comes.” [City of God, XIX:11.] The citizens of both cities have a common interest in peace. They can agree, at a minimum, upon a secure and orderly society that lets them pursue their goals, be they spiritual or material.

When laws truly protect us from harming one another, we respect those laws so unanimously that even criminals will agree (at least as those protections apply to themselves). On the other hand, when we cannot agree on moral values that do not impinge directly on others, we lose respect for the law. It seems brutal, rather than just and leads to contempt for the law.

Libertarians, along with St. Augustine, see the wisdom in limiting government (of whatever sort) to a least common denominator between the City of God and the City of Man; i.e. the protection of life, liberty and property. St. Augustine—along with St. Thomas, as noted above—believed vices must be tolerated because governmental suppression would only result in more evils:

What can be mentioned more sordid, more bereft of decency, or more full of turpitude than prostitutes, procurers, and the other pests of that sort? Remove prostitutes from human affairs, and you will unsettle everything because of lusts; place them in the position of matrons, and you will dishonor these latter by disgrace and ignominy. This class of people is, therefore, by its own mode of life most unchaste in its morals; by the law of order, it is most vile in social condition. [De Ordine, 2.4]

In condemning prostitution, St. Augustine makes it clear that just because we do not punish these sins does not mean we approve of the conduct. In his letter to Macedonius (413-14 A.D.), he uses the example of Jesus and the woman taken in adultery (whom Jesus saved from stoning). Augustine recommends that believers of his own day adopt Jesus’ merciful example: “Impious Jews yielded to his pronouncement; may pious Christians do so too.” He also notes that “[God] punishes very few offenses in this life, in case no one believes in divine providence; and he keeps most of them back for the final assessment, in order to remind us of that future judgment.” [“Letter 153: to Macedonius,” ¶ 4, 11]

[Read Part 2 here]

Thomas Aquinas: Should all vices be crimes?

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Should all vices be crimes? This a question St. Thomas addresses explicitly in his Summa, wherein he objects to the criminalization of most vices on the ground that it would make criminals of most people. St. Thomas argues that “human law rightly allows some vices, by not repressing them” and with good reason:

[Virtuous conduct] is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of oth-ers, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

What St. Thomas is teaching is nothing less than the non-aggression principle: that human law should limit its punishments to acts that hurt other people or their prop-erty. He goes on to assert that criminal punishment “belongs to those sins chiefly whereby one’s neighbor is injured.”

St. Thomas also cites God’s own unwillingness to prevent earthly evils, often times because the cure would be worse than the disease:

Human government is derived from the Divine gov-ernment, and should imitate it. Now although God is all-powerful and supremely good, nevertheless He al-lows certain evils to take place in the universe, which He might prevent, lest, without them, greater goods might be forfeited, or greater evils ensue. Accordingly in human government also, those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred: thus Augustine says (De Ordine ii, 4): “If you do away with harlots, the world will be convulsed with lust.”

Elsewhere, St. Thomas repeats this truth that suppressing vices can lead to greater evils: “[Human law] does not lay upon the multitude of imperfect men the burdens of those who are already virtuous . . . Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.”

As St. Thomas foresaw (along with St. Augustine), the criminalization of other moral evils–drunkenness, drug abuse, sexual immorality and other vices which are not directly harmful to others or their property–is unjust and results in greater sins.