Criminal Justice

Justice on Trial


One of the perennial debates among libertarians concerns the question of justice: what is justice and by what means is it best provided? Within the larger debate between proponents of "limited government" and advocates of "anarcho capitalism" (free-market, competing agencies providing defense, arbitration, and restitution services), there is another controversy concerning justice and its implementation. This is the debate between those in favor of a conventional retaliation/restitution concept of justice on the one hand, and the libertarian pacifists on the other. The leading proponent of the latter view is Robert LeFevre, founder and president of Rampart College, who here describes his concept of justice.

I've been hearing a great deal lately about the so-called right to retaliate in an effort to maintain or regain justice. It seems useful to explore the origins of the concept of justice. Perhaps this way we can discover the source of the notion that the violence of retaliation is an integral part of justice.


Most of us accept the idea that justice and fairness are more or less synonymous. We think of justice as an equitable exchange in which both parties to the exchange receive what each expects and agrees to accept. But we also think of justice as something that can be regained, once it has been lost. That is, many hold to the notion that when an exchange occurs which is not equitable, some element of force may rightfully be invoked in order to convert the non-equitable exchange into an equitable one. Thus, if a man takes a property from another against his will, the transfer is viewed as non-equitable; one man got what he wanted, but the other man was cheated. In this case, it is usually considered perfectly moral and just to employ force to regain the lost balance.

The concept of justice is deeply rooted in virtually all theological literature. The ancient Babylonians, Sumerians, and Akkadians were not unacquainted with it. Even more primitive peoples made "justice" the central theme of many of their religious observances. The fundamental concept of justice thus coming to us from its theological roots is that there is a straight line in nature which begins with the status quo. Justice, then, can be defined as a mystical concept relating to the presumed rightness of the status quo, symbolized by a straight line found in the balance of nature. Anything that causes that line to deviate from the straight is an act of injustice; which is to say that any tipping of the scales of natural balance in any direction creates a natural imbalance. In order for life to continue, that imbalance must be rebalanced.


Wigmore, in his three-volume study PANORAMA OF THE WORLD'S LEGAL SYSTEMS, shows that the early Egyptians designed the scale balance from this concept. Maat, the God of Justice, was often depicted in Egyptian art with scales at hand with which to weigh the good deeds and the evil deeds of the departing Ka. According to Egyptian theology, the Ka, or soul of man, was compelled to stand before Maat on the day of judgment. His evil deeds were put on one side of the scale and a small white feather was placed on the opposite side. If the feather outweighed the evil, the Ka could proceed to the realms of eternal bliss. If not, the Ka was doomed.


The Mesa Verde Indians who inhabited the cliff dwellings in the Four Corners area of Colorado had a similar concept, even though it was not so artistically elaborated. They maintained a Kiva, a circular meeting place with a prayer hole in the center of the floor. Before any major efforts were undertaken by the tribe, such as a deer hunt, a wedding, or a migration (all of which were viewed in a social context), the spiritual forces (what was good for the social whole) had to be consulted. Then the soul of the Great Manitou was supposed to issue from the hole in the floor to tell them how to put the natural forces back into balance, since the event being considered would, by virtue of its character, tip the natural scales out of balance to some degree.

Thus, if the tribe wanted to kill a deer, it was necessary to seek propitiatory guidance first. There must be a dance or a ceremony of repentance for killing the deer, the "little brother" of the tribe. They would have to protest that they were not angry at the deer and thus that their deer hunt was not motivated by any desire to hurt the deer. Rather, they were hungry. So they apologized for the injustice they were about to cause the deer. By this process, they tipped the scales out of balance by anticipatory retribution, thus virtually assuring that the deer hunt would be a success and that, when the deer was finally driven to earth, balance would have been restored and justice maintained.

It is from this concept, hoary with age and nearly universal among primitives, that the Babylonians derived the "eye for an eye" justice. Hammurabi, the great Babylonian law giver, caused some 232 laws to be inscribed on a diorite stele at the main gate of Babylon, nearly a third of which ended in the death penalty and virtually all of which related to this theological approach to justice: the balance of nature maintained retroactively by government as an agent of the gods.


Fortunately, at the present time, there are a few who are challenging the assumption that the State is the only or even a satisfactory agent of retaliation or retribution. But nearly all of the arguments I have seen which have recently emerged in favor of retaliation or retribution have zealously called for free-market agencies to perform the same functions presently conducted by the state. Instead of an imposed and involuntary monopoly of coercion locked into a political organization, these plans call for a voluntary and freely contractual relationship with any number of agencies which would organize for the purpose of providing retaliatory services.

This approach has certain merits. It would eliminate the onus of taxation. And it would permit the individual to select the agent or agency of his choice. Likewise, in some of the arguments suggested, the individual who decided for whatever reason that he didn't want any agent or agency to retaliate for him could refuse to contract for this service. Firm in the center of each of these arguments, however, is reliance upon the ancient theological dogma of an eye for an eye.

Some have even gone so far as to insist that, when an immoral action occurs and a man is victimized through some initiated breach of his rights, he then has a moral duty to restore the balance and the status quo. Although they have avoided the use of these specific terms, they have in fact argued in favor of the notion that the individual has a moral obligation to society to maintain the status quo, that is, to put the pieces back the way they were before the initiated molestation transpired. If a man can conceivably have a moral obligation before he has assumed it, then we open a Pandora's box and can suggest, with equal validity, that he also has a moral obligation to see that everyone is fed, clothed, housed, educated, and so on, ad nauseam, for the good of the social whole.

That single point, the notion of a duty to society to restore justice, is the least rewarding of the various concepts offered and is not a part of all of them, so let me confine my observations to the other aspects.

The Reverend Edmund Opitz of the Foundation for Economic Education has offered a number of good points in rebuttal to the argument of the pro-retributionists who object to a government monopoly of retaliation ("Must We Depend Upon Political Protection?" Opitz-LeFevre). In mistakenly identifying my position as advocating private enforcement agencies (I advocate private protection agencies), he pointed out that any agency which presumes to the power of the state, becomes in fact a state whatever it may be called. To have states competing over a given territory is to have a condition of war.


Let us suppose, for instance, that we have two competing protection agencies: the Ajax All-Purpose Retaliators and the Titan Regulators. They send their salesmen into a given community and each one signs up a percentage of the total population. It is not reasonable to suppose that each agency will sign up all persons in a given block. Rather, it is reasonable to suppose that the Ajax people will sign up perhaps 30% of a given territory, the Titan Regulators will sign up some 25% of the people in the same territory, and about 45% of the people in the same territory won't sign up for either.

Now what do we do? An individual who signs up with Ajax is robbed. He suspects both his neighbors, either of whom conceivably had motive and opportunity. One neighbor has signed up with Titan. The other has contracted with no one. Now, the neighbor who has signed with Titan will certainly not permit rival agents to enter his home for a search. He has distrusted the Ajax people and won't tolerate their entrance upon his property. He calls for the Titan Regulators to retaliate against any Ajax incursion. The two rival agencies now face each other across a battle line. To carry out their respective contracts, they must make war on each other. Meanwhile, the individual who signs with neither and distrusts them both, and having no one to turn to, might either do his own shooting or become the victim of retaliation from either or both.

Just how this procedure is to maximize human well-being and bring about a state of freedom and peace in the area in question has not been dealt with by the proponents of rival freemarket retaliatory agencies.

I might point out that this type of internecine warfare is common enough in history. Rival feuds between gangs, acting in a "free market" but endeavoring to do the same things governments do, made a shambles of several large cities during the government's fantastic legal spasm called "Prohibition." Family feuds in Tennessee and Kentucky in early years provide a certain amount of instructive evidence. So does the accumulated testimony of hundreds of persons finding themselves under the pressures of various Vigilante groups. As long as we are worshipfully insistent on retaliation, vengeance, and "putting things back the way they were," we are going to fail of any solution worthy of the name.


Small wonder that most people, attempting to deal with the problem of protection, viewing protection and retribution as inextricably linked, and having been conditioned to accept government as the "all-purpose problem-solving mechanism," simply give up at this point and say, "I'd rather have a government of laws which are binding upon all, than competing rival agencies of retaliation which know no rules but their own. Even though our government is admittedly evil and wrong and increasingly alarming it is better than the alternatives suggested."

The problem relates to the deeply entrenched notion, imbedded in the religious mores of the people, that an "eye for an eye" is the only valid concept around which a society can be based.

My own views of the matter have been frequently put forth. I do not think we need a government to do the one thing government has always taken as its exclusive domain—retaliation. It is, in fact, the urge for retaliation, the thirst for vengeance, that ties us to the state or to rival agencies acting like smaller states, whatever they are to be termed.

If we begin to recognize the marvels of a freemarket, then we can see that protection is a freemarket service and that retaliation by its objective character, is something only an agency of force can accomplish.


A free market and an agency that denies a man the right to say "No" are incompatible. If a man may not say "No" to a stranger at his door, then the condition he faces is not that of a free market. To grant power to some to impose on others is to grant a power that no one rightfully has over another. To argue that some man has done something wrong and you merely want to restore the balance is to rely on the religious argument that somehow presumes that rightness can be retroactively imposed and maintained by force.

That's what heaven and hell are all about. The theological position is that the wrongdoer will be retroactively corrected in another life; the doer of good deeds will be rewarded at the same time. Without the concept of retroactive justice, neither heaven nor hell are useful ideas. The single contribution of the state is that it presumes to provide a heaven and a hell on earth and in this life time. Politicians are unwilling to leave the matter of vengeance and reward to natural forces or to a presumed divine pantheon whose specialties include both exquisite pleasure and joy, reserved for the chosen few, and layers and layers of infernos, each equipped with its own methods and devices for inflicting agony in retaliation.

To offer free-market agencies endowed with the power to inflict retroactive agony on those who presumably "deserve to be punished" is to set in motion all the necessary machinery to create a hell on earth.

Now, if we can get off this retaliation-retribution kick and think in plain terms, we may emerge.


Protection is possible. It can be morally obtained by anyone in a free market who will go out and with a little forethought purchase the tools or the devices that he believes will serve to protect him. And I have no objection to the concept of hiring guards or protective agencies, so long as their services are understood to contain only the element of protection.

Nor do I care how many subscribe to the Ajax All-Purpose Retaliators or to the Titan Regulators, if only we take the word and the notion of retaliation out of the contract. It follows that, if a person procures the devices or the agencies which are to protect him and he is protected, retaliation is impossible.

But what if he is not protected? Then let him go out and purchase better devices or the services of superior guards.

I might point out that this is the market-place procedure. If you pay for a proffered good and it doesn't provide the satisfactions you sought, then you patronize another supplier.

Nor do I object if you return to the party who sold you an inferior item and demand your money back, or seek by any and all moral means to obtain some type of restitution. That is well and good. Additionally, voluntary arbitration is always an available market service. And the necessity all men face in a free market (of having to deliver what they say they are selling or face a ruthless competitor, public indignation, and bankruptcy) will guide us here. Instead of seeking to retaliate physically, why not publicize the wrong that has been done?

But in a sense, isn't this retaliation, too? Yes, it is. And I do not think that it need be relied upon, for publicity is a fearful weapon and it has a two-edged blade.


What we come to learn in time is that in order to live, we are going to have to live in a world where there are few if any guarantees. Government cannot guarantee you against a wrong being committed: neither can a private agency. The only guarantee you can rely on is the one you make to yourself. You can guarantee to live your own life, reasonably, morally, and in a manner which minimizes the likelihood of violence being imposed upon you.

And if and when you are victimized, either by a bad product, a bad service, or a bad actor, you can learn a lesson from this and take the available precautions so that you will not suffer a second time.