DailyAnarchist.com | I have a fundamental objection to the prison system that I rarely hear raised. Why does a man who steals a loaf of bread lose his freedom of speech? Why does a woman who vandalizes a car lose the freedom to associate with her children? These questions are a challenge to those who view rights as social constructs as well as those who believe they are inalienable. Stated in more general terms, how is it that aggressors lose virtually all freedom because of what might be a minor transgression?

The facile answer is, “because they are in prison.” Anyone who is incarcerated forfeits most of his rights to the state even if his offense was minor. In essence, a petty thief loses as many rights as a murderer. The longevity of the loss and the comfort of the circumstances may differ, but neither convict retains basic human rights like the freedom of association.

More than the state is at work here; the prison system is an expression of a specific form of justice that is based on retribution and punishment. In turn, these are usually based on the human desire for revenge and the belief that punishment deters crime. But given how angry and crime-ridden our society has become under this system, it is worthwhile to reconsider the wisdom — if not the morality — of having one in every thirty-one American adults imprisoned or on parole or probation (The Economist, July 22, 2010).

With two changes in the legal system, prisons could be eliminated or hugely reduced while still providing justice to victims. The first is to void all laws that do not involve harm done to individuals or their property. The second is to apply restitution not merely to civil infractions but also to criminal offenses.

Restitution is the system in which a person “makes good” on a harm or wrong done to another individual and does so directly rather than paying a “debt” to the state. If a man steals $100, he must return $100 to the victim along with reasonable damages. Thus, restitution eliminates the need for an aggressor to be processed by any type of law enforcement beyond what is necessary to procure repayment and damages. A thief need not be caged; all he needs to do is pay up.

The Proportional Use Of Force In Justice

Libertarians advocate proportionality in the use of violence to protect rights and to procure justice; violence must be a proportional response at all stages of aggression.

Even when aggression is occurring, a store clerk is not allowed to beat a mere shoplifter senseless, nor can a property owner execute a trespassing child. At least two factors control the level of force that is justified in response to direct and active aggression. First, the force should not greatly exceed what is reasonably necessary to halt the act. Second, the force should be roughly equivalent to or less than the severity of the aggression. Thus, extreme violence may be appropriate to prevent a rape but not to prevent vandalism.

Anyone who commits a crime should forfeit the rights he has stripped away from another person until restitution is provided; after all, through his actions, an aggressor indicates that he approves of violating a specific right and, so, provides implied consent for it being taken from him. Thus, the thief who steals $100 has no right to his own money until his victim receives full payment and reasonable restitution. (The standard of “reasonable” restitution is debatable, with some legal theorists placing it very low, and others placing it high enough to act as a punishment and deterrent itself.)

When the offense is against property, restitution to the victimized owner is relatively straightforward. When the offense is against one’s physical person — that is, when it involves bodily harm — restitution becomes far trickier. In many cases, the victim cannot be “made whole.” It should be noted, however, that such crimes are a problem for any legal system, and no system can make all victims whole. This is not a failing of restitution but an inherent dilemma posed by particularly vicious offenses. What needs to be demonstrated, however, is that restitution offers more and better justice than other, competing systems.

The Role Of Courts Under Anarchy

Once a violation of rights has occurred, the emphasis must be on restitution, and here is where a court system becomes useful. In a free market, courts would perform several functions.

They would provide a public forum in which rights violations could be adjudicated in a disinterested manner and restitution could be enforced. A public forum is desirable for several reasons, including the transparency that prevents corruption. It also avoids the possibility of a continuing cycle of violence by well-intentioned third parties. Consider the stolen $100. If a victim attempts to retrieve the money on his own, then he himself could easily be mistaken for a thief and forcibly restrained by strangers. By appealing to a recognized and disinterested agency, the problem of public misperception is avoided.

Introducing courts also addresses the problem of proportionality. A victim may sincerely believe the pain and suffering from a broken leg to be worth a thousand times his medical bills and other attendant expenses. Victims often lack perspective — and understandably so! The solution is to find a middle ground between whatever restitution the victim considers fair and what a court deems to be proportional.

Finding the balance where fairness lives will require some subjective judgment. For example, if a woman or man is raped by a partner who was confused about the presence of consent because they were both drunk, then the proportional punishment might be far less than in a case where the rape victim was severely beaten. Moreover, as Randy Barnett once mentioned to me in conversation, the impact of a rape on a specific person could well be part of the “damages” assessed. For example, if a nun suffered a severe nervous breakdown because of a rape, then the damages might include years of psychiatric care. The extent of the impact — and, so, of restitution — is a risk the rapist takes when he decides to violate another human being. And, of course, the more extensive the restitution becomes, the more likely the aggressor’s rights will be stripped away to ensure “repayment.”


This article raises more questions than it answers. What about murder and capital punishment? Are rights inalienable? Does restitution go against the human desire for vengeance and, therefore, against human nature itself? How would private court systems or law-enforcement agencies function? Is a free-market prison system a contradiction in terms? These are the kinds of issues that fill volumes, but I’ll try to touch on them all in upcoming articles for the Daily Anarchist.

By Wendy McElroy