Spotlight: Cross-Examining the Law


Randy Barnett grew up with an interest in the idea of justice that bordered on obsession. At the age of 10 he decided he would become a lawyer—"to get more justice." Today, he is the recognized legal expert on restitution—the idea that a criminal must compensate his victim—as a principle of criminal law.

Having grown up in the Chicago area—where, Barnett says, "we had a philosophy, but didn't know from 'philosophy'"—he entered Northwestern University, intending to study political science. Instead, he became fascinated by "this thing called philosophy" and became a philosophy major.

It was at Northwestern that Barnett met John Cody, then a classics professor, and the two began discussing concepts of justice and law with each other. "I argued with him for about nine months," Barnett recalls. "John Cody is solely responsible for exposing me to and convincing me of libertarian ideas. He was very patient with me, and after he answered every question I had, I said, 'Geez, I guess that's right.'" Cody introduced Barnett to a wider variety of intellectual sources, especially in connection with a paper on punishment that Barnett was working on, and encouraged him to apply to Harvard Law School, to which Barnett was accepted.

While at Harvard, Barnett wrote his first paper arguing for a criminal-justice system based on restitution of victims rather than on punishment of criminals. The paper was to achieve a standard of recognition in the field that even Barnett never thought was possible. In 1977, Ethics, the prestigious journal affiliated with the University of Chicago Philosophy Department, published the article. Barnett then wrote a sequel to it, published in 1980 by the University of Notre Dame's American Journal of Jurisprudence. The influence of the two articles continues to widen.

After graduating from law school in 1977, Barnett joined the Cook County (Illinois) state's attorney's office as a criminal prosecutor. Then, in 1981, Barnett accepted a grant to do research in contract law, the field that he had intended to specialize in, at the University of Chicago Law School. When he left the University of Chicago, he took a job as a professor at the Illinois Institute of Technology's Chicago-Kent College of Law and is now in his third year there.

Barnett says that when he went back to academia, he was surprised to find himself an authority on restitution, though his specialty was contract law. His first article on restitution has been reprinted three times, including once in Readings in Philosophy of Law, a 1984 text published by Prentice-Hall. It is also coming out in a new edition of Punishment and Rehabilitation, a major text by the well-known scholar Jeffrie Murphy, and the second article has been reprinted in an Oxford University Press text, Moral Issues, edited by Jan Narveson. "That told me where my true satisfaction, not to mention comparative advantage, was," Barnett says. "I felt I could do the most good in academia."

Barnett doesn't believe in punishment, except for perhaps the very unusual person who has absolutely no regard for human life. In most cases, Barnett says, the law should focus on restoring the victim, not lowering the criminal.

We can view a crime, Barnett explains, as the criminal lowering the victim from the status quo, while the criminal may be raised. The punishment model of criminal justice asserts that the criminal should be lowered to the level on which he put the victim. But according to the restitution model, the criminal should be forced to raise the victim to the victim's original level.

Barnett also argues for ending the government's monopoly over legal systems. Government legal systems don't need a monopoly of jurisdiction that they claim to have, Barnett asserts. He points out that we already have 50 state court systems and a federal court system, whose jurisdictions are independent of one another. But, out of necessity, the systems function cooperatively. "Say a citizen of Illinois travels to California and injures a citizen of California," Barnett explains. "Two questions have to be resolved: which law will apply, and which court system will try the case?"

Barnett's alternative is the elimination of both the government legal system's monopoly of jurisdiction and its subsidization through taxes. "Those two unnecessary aspects of our legal system produce more injustice than you can possibly imagine," he declares.

The main difference between Barnett's proposed system and the one we now have is that the jurisdiction to which an individual belongs would not have to be based on home ownership or residence, as it is now. Instead, individuals could choose the jurisdiction to which they wish to belong without actually living there, just as corporations presently choose the state under whose laws they wish to incorporate without actually having to locate their business there. As a result of this latter fact, Barnett observes, "There is competition in incorporation law, and Delaware has been a leader and entrepreneur in the area."

"The more you know about the way our current system works," he says, "the more moderate my proposals are. The problem is that people believe in the myth of the state court system instead of the reality of the system."

About his style of argument Barnett says: "I call a spade a spade. If you do so politely—not with the idea of shocking people, but to explain that a system based on property and individual rights is not so very far from where we really are right now—people will respect you even if they disagree. People often see my proposals as very radical, but they really are not—though they could yield radical benefits."

Patrick Cox is a free-lance writer.