Libertarian View of Crimes & Criminal Justice

@simonr916 raised some questions about how could the law, police, courts, etc function in a libertarian society. I dealt with the issue of civil law in my previous post and now move on to criminal law.

Before tackling possible mechanisms of implementing a libertarian criminal justice system (Which I will do on the next post) I need to clarify how libertarians define crime and criminal justice.

What is a crime?

The only things that are considered crimes in a libertarian society are violations of the Non Aggression Principle. The invasion of private property (including the person) using force or the threat of force.

So, crimes include, murder, assault, rape, kidnapping, burglary, robbery, fraud, etc.

Many things that are considered crimes in the statist world are not criminal to the libertarian.

“Victimless Crimes” are not considered crimes in a libertarian society, so taking recreational drugs, driving without a seat belt, smoking in a business establishment if the owner gives permission, unforced prostitution, consumption of pornography, polygamy, etc are not crimes.

Exercising legitimate property rights is not a crime, so refusing to allow people onto your property, even if based on racism, sexism, homophobia or a hatred of people in blue boots, is not a crime. Owning an assault rifle is not a crime, growing drugs is not a crime. Exercising free speech that others find offensive is not a crime.

What is Criminal Justice

In the statist world the criminal commits crimes against the state. He is tried by the state, pays fines to the state and is, in some cases, imprisoned by the state. The principles guiding the state are punishment for the offence, deterrence of other offenders and rehabilitation of the offender back into society.

Libertarian justice in contrast is guided by the principle of restitution. The criminal has wronged the victims and has to make good that wrong, not to “society” but directly to the victim(s). The costs of administering justice, and creating deterrence are also borne by the criminal.

The difference is best explained with an example.

An man robs a pensioner of her life savings of £25,000.

In the statist system he is sentenced to 4 years in prison. After 2 years in prison, if he behaves, his “debt to society” has been discharged and he is free to go. If he has been successful at hiding his loot, he can enjoy his ill gotten gains. The pensioner has still lost her life savings and innocent members of society have had to pay to catch, prosecute and incarcerate him.

In the libertarian system he is “sentenced” to repay the victim the £25,000 plus compensation for her distress, the costs of catching and trying him and an amount to deter other criminals. The criminals assets are sold off and he is detained and put to work until the victim is restored and compensated and all the costs of the crime are paid for. The victim is fully compensated, no innocent members of society are forced to pay anything and all the costs of the crime are suffered by the criminal.

Now we are clear on what libertarians mean by a crime and criminal justice, we can move on to look at how a private system of criminal law enforcement would operate.

For a more in depth exposition try this


Words by Murray Rothbard

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  • awilliams66

    What if the criminal does not have the assets to pay for their crimes and can only do minimum wage work that would just cover the cost of their upkeep while they are imprisoned in the “debtors prison”.  It would become a life sentance for those who are poor, unskilled and unhealthy (not an unheard of combination).

    For the poor who are found gulity it is a return to the Roman method of turning prisoners into slaves until they can make enough money to buy their freedom.  The rich on the other hand can pay for others to break the law for them and then pay the fines imposed on their lackeys if caught.  You upset the wrong person he can have you beaten to a pulp and then pay the fines imposed on his lackeys, thus intimidating anyone else likely to stand up to them.

    • Murray Rothbard

      It would not make economic sense to give a life sentence. The criminal would simply refuse to work and nothing would be repaid. It would be in the interests of all parties to negotiate a settlement that gave as much as possible back to the victim, without removing the incentive for the criminal to earn his freedom.

      It would also be in the interests of the victims insurers (who would deal with recovery of the compensation) to provide rehabilitation training to the criminal. The more skilled and productive they become the more they can repay and the quicker they can earn their freedom.

      In the case you mention the commander of the violence is just as guilty as the perpetrator and can be punished directly. In libertarian justice this does not have to be financial compensation but can be a reciprocal physical beating carried out personally or by agents.The more bleak the outlook for criminals the less attractive crime becomes as a life choice. I have no sympathy for criminals who would find it difficult to pay for their crimes, they always have the alternative choice of not committing the crime.

      • @simonr916

        The more you explain it, the clearer it becomes that a libertarian world would be a brutal and horrible place to live.

        • Murray Rothbard

          Certainly it would be a more brutal and horrible place for criminals to live.  They would no longer be given free board and lodging at taxpayers expense, complete with SKY tv, playstation, etc. and then allowed to return to terrorizing law abiding citizens after their short break.

          It would be far less brutal and horrible for the victims of crime who would be fully restored to their previous position after a crime, instead of losing everything.

          It would be far less brutal and horrible for law abiding citizens who would feel safer and experience less crime as they go about their peaceful activities.

          As a non violent citizen, my sympathy is with those who suffer at the hands of criminals, not those who use violence against the person or property of others for personal gain.

          The criminals have a choice, the victims do not.

          • @simonr916

            You clearly have much greater faith in the effectiveness of retributive justice in reducing crime than I do.

          • Murray Rothbard

            Off course it is not a panacea, but ensuring that crime does not pay for criminals will reduce crime more than a system which allows crime to be a rational choice

          • Scribbler

            This system makes no allowance for how a criminal came to be a criminal. If two people committed the same crime, one because he felt like it, the other because it was the inevitable culmination of a lifetime of abuse, ill-treatment, illness etc, would they be treated the same?

          • Murray Rothbard

            Yes, for two reasons:

            1. The primary objective of a criminal justice system should be restitution to the victim. The loss to the victim does not depend on the motivations of the criminal.

            2. Motivation is not demonstrable by evidence. Not everyone who has a lifetime of abuse becomes a criminal. Everyone can claim as a defence that it was inevitable that they would do it. Indeed hard deterministic philosophy would assert that free will is an illusion and all actions are inevitable.

          • Scribbler

            ‘The primary objective of a criminal justice system should be restitution to the victim’ – why? I’d have thought that in a society that is concerned about its collective improvement (and therefore enhancement of all individuals’ lives), the primary objective.would be reform of the offender.
            Restitution should also, presumably, act as a deterrent to likely offenders but it’s been shown time and again that the threat of severe punishment does not deter the criminal.
            Your method writes off the rehabilitation of offenders. Choosing not to understand why something happens is an easy abnegation of our humanity in favour of pure self-interest.
            In addition, seeking reasons as to why someone offended not only reveals those reasons and encourages compassion for a fellow human being, but also gives the best chance of addressing the reason and therefore preventing it happening again.
            Your system maintains them v us, incites anger within each side and widens the gap between offender and victim. Each side becomes ever more polarised so eventually your life chances are dictated purely by which side you are born on to.
            Conflicts require each side to dehumanise the other in order to fight; and that is what you are doing. This makes it easy to dismiss ‘the criminal’ and leave them no way back. Perhaps this is what you mean by determinism.

          • the_shareminator

            Scribbler – “I’d have thought that in a society that is concerned about its
            collective improvement (and therefore enhancement of all individuals’
            lives), the primary objective.would be reform of the offender.”

            A society that is concerned about justice is first and foremost concerned about delivering it. That is why it is called the Criminal Justice System. Not the Collective Improvement System… Justice for the victim and criminal are equally important. Ultimately this is about keeping society safe first and foremost.

            But as most of us here are aware the rate of re-offending has continued to increase in recent years (

            What does it tell us when the proportion of offenders with 15 or more convictions has risen from 29% in 2001 to 44% in 2011? That repeat offenders are not deterred. Nor does is suggest reform is working.

            Perhaps offenders would be more inclined to reform if like Murray Rothbard suggests prison time was better spend rather than simply being locked in a cell 22 hours a day. Nobody is suggesting dehumanising prisoners, that is your own irrational fear of a libertarian world. Prison should however be a deterrent. It should serve to punish and reform equally.

            How does rewarding a criminal with Sky, Xbox, TV etc help them reform? It doesn’t. And this is all tax-payer funded. Why should prisoners be given free board and lodging? It is a perfectly reasonable question. Wouldn’t it be in their interest to learn new skills, read, wash, build, etc in order to improve their chances in the outside world whilst contributing to their costs of imprisonment? Reform should enable and also deter but currently it does very little of either.

      • Foley freedom

        Good idea needs some tweaking, firstly not all crimes can be financially paid for. The better option would be to give the victim the option of being paid back or having the person go to a prison should the crime be of enough severity to justify it. The other safe guard would be means adjusted re-payment to be considered for the very rich. The extra money would not go to the victim but the state.

  • voodoo_criminology

    “If he has been successful at hiding his loot, he can enjoy his ill gotten gains.”
    Not so. Firstly, the victim can institute civil proceedings to claim back her money, including by attaching any assets the offender may have. Secondly, there are, in most jurisdictions, mechanisms of forfeiture and compensation operating in the criminal law.

    I find it curious, also, that fraud is included as an offence involving the threat of violence. That very often isn’t the case – the obvious fact that is that not all coercion involves violence. 

  • Foley freedom

    On policing it should be policing by consent of the population. The death penalty could be considered for a particularly nasty crime. Over one life would have to be taken and on conviction the judge would have to rule on rehabilitation. If the judge ruled no real prospect and selected the crime to be of the highest category of inhumane he would give a green light to a public vote. The public would then vote if the convicted felon should be hanged or kept behind bars. It would reduce the great cost of keeping a person incarcerated for decades for example serial killer Manson. I would argue the police provide a good service and just need to have their functions go back to crime fighting.