Front Page Titles (by Subject) III: Law and Public Policy - Literature of Liberty, January/March 1979, vol. 2, No. 1
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III: Law and Public Policy - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Law and Public Policy
Rival interpretations of law and jurisprudence raise profound questions of right and justice and intertwine with complex social, economic, political, and religious issues.
The first three summaries sketch the working out of two such rival legal philosophies from the eighteenth to the twentieth century. An outgrowth of the tradition of natural rights and common law, the first philosophy, that of classical liberalism, espoused an individualist legal doctrine; liberalism viewed the legal system as a bulwark of individual rights to life, liberty, and just property titles, securing persons from private assault, and more particularly, from the threat of state power. Liberalism's rival as a legal doctrine, the more statist positivist-utilitarian tradition conceived of the legal system as a political tool to promote various state policies and gave rise to the bureaucratic and regulatory state. Posner's summary dramatizes this clash of rival legal philosophies by contrasting the liberal Blackstone with the utilitarian and social engineer Bentham. The liberal legal theory implies that the complex order of society arises from the free choices of individuals, legally protected from coercion. By contrast, the positivist-utilitarian tradition from Bentham to Brandeis and their successors seeks state intervention to bring about social reform.
The Meckling summary illustrates, in the area of bankruptcy law, the policy implications of a statist legal code in contrast to an individualist legal theory. Similar thematic undercurrents contrasting these rival legal philosophies run through the following summaries whether the legal point at issue is judicial review, first amendment rights (to scientific research of freedom of religion), or the meaning of liberty and property in the Fourteenth Amendment.
The concluding seven summaries, beginning with Graff's, delve into various aspects of legal penology and alternate conceptions of meting out justice. What are the ethical and political philosophical issues involved in punishment theory? Is legal punishment justifiable, and, if so, on what basis? Does restitution fit the crime better than retribution? Finally, the Smith and Person summaries return us to the rival legal theories of liberalism and statism by raising the possibility of a free market solution to providing individual justice.
Law without Justice?
“The Legacy of 1776 in Legal and Economic Thought.” The Journal of Law and Economics 19 (October 1976): 621–632.
Applying his ideas in The Transformatión of American Law, Professor Horwitz considers specifically the demise of faith in the American Revolution's classical liberal ideas. He concludes that the realities of the American state and its legal system have negated these ideals, spawned doubt, and eroded faith.
Two antithetical legal doctrines emerged in the nineteenth century. One endorsed the premises of liberalism. These liberal premises supported equality of opportunity (procedural equality) while opposing equality of results (substantive equality).
The second doctrine focused on how the legal system could intervene to promote economic growth and a narrowly conceived efficiency. Law became a political tool of state policy, a view in sharp contrast to that of the law as nonpolitical and neutral among clashing interests. With its commitment to equal results rather than opportunity, the second doctrine treated law as redistributive.
The nineteenth century saw the clash of these conflicting legal doctrines. Eminent domain and bankruptcy law represent the triumph of the forces using the politicized law as a growth-supporting institution. By the end of the century, Americans were choosing between the market system, which depends on decentralized economic power, and the centralized property system that was the outcome of a legal transformation. Moreover, the natural rights justification for the market was eclipsed by the realities of the new legal-political system.
The rule of law itself suffered from this development, for the primacy of the rule of law depended upon acceptance of eighteenth-century natural rights thinking. The rule of law now faces its most important challenge in today's bureaucratic and regulatory state. But those who advocate change to achieve allocational efficiency represent the same positivist-utilitarian intellectual tradition that undermined both natural rights thinking and traditional legal constraints.
For Horwitz it is too late to return completely to the earlier liberal ideal of justice. We must “recreate the ideal of legality anew.” Nonetheless, he sees one clear legacy of 1776: “After two hundred years we have finally begun to understand that there can be no law without justice and no justice without law.”
Blackstone vs. Bentham on Law
“Blackstone and Bentham.” The Journal of Law and Economics 19 (October 1976): 569–606.
Blackstone's originality lay in analyzing the abstract social function of law and then demonstrating how these English laws operated to achieve the economic, political, and other goals of English society. With this in mind, Bentham's violent attacks on the Commentaries of the Laws of England are all the more mysterious.
Among other things, Blackstone presented a “competent statement of the economic theory of property rights.” For Blackstone, the ultimate objective of law is to secure fundamental rights so that people can pursue their own ends—the liberal or eighteenth-century conception of rights. Though Blackstone denied that a court could invalidate a duly enacted Parliamentary statute, he argued that abridgments of fundamental rights legitimated revolution. He here accepted the Lockean argument, an argument later incorporated into the Declaration of Independence. Likewise, Blackstone strongly defended a separation of powers and trial by jury. His strong adherence to common law was a commitment to rediscovering pre-Norman and pre-feudal Saxon justice, and applying it to new circumstances—an evolutionary view of law. This contrasts sharply with Bentham's attack on Blackstone as a defender of the status quo, “the dupe of every prejudice. . . the abettor of every abuse.”
Indeed, the more one analyzes Blackstone's views, the more difficult it is to comprehend Bentham's antipathy toward them and their author. For example, Blackstone adopted a utilitarian or preventive rationale for punishment, rather than a retributive one. In this, Blackstone and Bentham each drew on a common source, Beccaria. In seeking to apportion punishment to guilt and in attacking the extensive use of capital punishment, Blackstone anticipated Bentham. Why then Bentham's hatred of his ex-teacher?
Blackstone was most of all “guilty” of having eloquently demolished a number of what were to be Bentham's pet proposals. This appears in the codification of law. Moreover, history vindicates Blackstone's skepticism about codification. Similarly, Blackstone's commitment to procedural rights, to trial by jury, to the right to refuse making self-incriminating statements were commitments to what became the basis of our Bill of Rights. Bentham viewed these as impertinent obstacles to his reformist measures. “Bentham is not a little the fanatic whose willingness to sweep aside the obstacles to implementation of his proposals draws sustenance from a boundless confidence in his own reasoning powers.” Blackstone, on the other hand, had spent so long studying the complex order of society that he had developed a respect for its powers to evolve and to adapt without superimposing reforms on it.
Above all else, what separated Blackstone and Bentham were their attitudes toward political power. Blackstone adopted an essentially classical liberal view of the state. “Bentham's blind spot about the problem of social order is of a piece with his enthusiasm for social planning. He worried about all monopolies except the most dangerous, the monopoly of political power.”
“Adaptive Jurisprudence: Some Dimensions of Early Twentieth Century American Legal Culture.” Historian 40 (November 1977): 16–35.
Johnson attempts to synthesize what was happening to American law and legal culture between 1908 and 1940. He contrasts this period with the “age of creativity” in American law, that is, the first half of the nineteenth century.
In the earlier period judges, attorneys, and legal scholars used law to promote social change. But in the years studied, law was more reactive, what he calls an “adaptive jurisprudence.” It reacted to interest groups, nonlegal disciplines, the general temper of the time. It was a time of accommodation rather than originality.
1908 is indeed an important date in the history of American law, as that was the year of the “Brandeis brief,” itself a manifestation of the new adaptive jurisprudence. In the progressive period, lawyers (like other professionals) were attempting to bring more exacting standards to legal education, admission to the bar, and to utilize “new sources” which began to rationalize legal doctrines. Examples included the Corpus Juris (1913), the American Law Reports (1919), and the American Law Institute's Restatement (orginally conceived of in 1914). Then there was the Brandeis brief and the “Brandeis opinion;” these views in Mullery-Oregon brought extralegal materials to the attention of the courts (medical reports, psychological treatises, and factory inspector reports).
In the meantime, the judicial mind responded in the legal profession itself: common law was looked at less closely; statutory law more intensively (including legislative history). The “case method” (which had really been launched in the 1870s) seemed to undergo drastic changes—one book on criminal law contained citations from Catherine II of Russia; an article from the Nation; newspaper accounts of trials and vigilante activities; reports from various investigatory committees; psychoanalytical literature; excerpts from books; and book reviews on criminology.
Finally, there emerged in the 1920s a concept known as legal realism: legal professors and lawyers began being quite skeptical about traditional legal maxims and traditional legal institutions.
These forces and others combined to issue in a new view of the law.
Is Bankruptcy Law Bankrupt?
“Financial Markets, Default, and Bankruptcy: the Role of the State.” Law and Contemporary Problems 41 (Autumn 1977): 13–38.
Economic analysis discloses that bankruptcy law adversely distorts the cost and allocation of credit.
Bankruptcy (both corporate and non-corporate) is a legal device by which the state legally and economically intervenes to absolve insolvent debtors from their full financial obligations once the debtors have paid their debts to the limited extent that their assets allow. By releasing debtors from their contractual obligations, bankruptcy gives the illusion of benefitting debtors at the expense of creditors. But at best, this benefit is for the very short run. In practice, creditors take the risk of bankruptcy into account as a cost of extending credit. Borrowers will ultimately bear these costs either in the form of higher interest rates or by less available credit. Because the anticipated losses to creditors from bankruptcy are reflected in higher interest rates and reduced availability of credit, bankruptcy statutes are only nominally “pro-debtor” and actually transfer wealth from those who do repay their loans (and those who are denied loans) to those who get loans but do not repay.
Corporate bankruptcy reorganizations produce similar problems. Congress, the courts, and the federal SEC refuse to make stockholders merely “residual claimants.” That is to say, in many cases creditors need not be fully repaid before stockholders in the corporation get something of value. To the extent that this generous treatment of shareholders imposes costs on lenders, lenders will pass on these costs in the form of greater borrowing costs and reduced credit. Here again, instead of transferring wealth from creditors to debtors, bankruptcy law redistributes wealth and opportunities among debtors.
In large measure, current bankruptcy statutes and various proposed bankruptcy “reforms” (which claim to be more “lenient” with debtors) redistribute wealth in complex ways. Furthermore, often the supposed beneficiaries of such statutes actually prove to be their victims.
Reviewing Judicial Review
“The Scope of National Power Vis-à-Vis the States: The Dispensability of Judicial Review.” The Yale Law Journal 86 (July 1977): 1552–1621.
What should the appropriate role of the federal judiciary be on questions of apportioning authority between the nation and the states? The Court should abandon judicial review of federal questions when powers inherent in the federal legislative and executive branches can themselves resolve issues of constitutional federalism.
Constitutional issues of federalism fundamentally differ from constitutional issues of individual liberty. Constitutional issues of federalism define which level of government has the power to engage in permissible conduct. Choper takes the position that state representation in the national legislature makes the President and Congress trustworthy to view issues involved in federalism disputes. By contrast, beneficiaries of individuals rights, such as blacks, may not be adequately “represented” in the political branches. Therefore it is necessary that the judiciary assume a more active role in personal rights cases involving judicially favored minorities. However, in other cases “when democratic processes may be trusted to produce a fair constitutional judgment,” popularly responsible institutions are suitable to decide.
The major thesis disallows the federal judiciary to decide the ultimate constitutional power of the national government vis à vis the states. Nor should the judiciary decide whether federal action is constitutionally forbidden to the central government (and thus violates state hegemony). For example, the federal courts should not judge whether Congress has the constitutional power to promote governmental favoritism to blacks.
Also immune from the federal judiciary's concern would be Congress's use of the spending, commerce, belligerency, or other powers. The author would quash state rights challenges to national actions except when they involved individual rights. The Court would not have jurisdiction over state rights claims that “only dissipate the Court's energies and undermine its ability to perform the critical task of protecting all individual constitutional liberties.”
The Court should reject traditional judicial review over questions of state rights. That the Court now “rarely exercises its power of review to invalidate national action is no guarantee that it will not revert to a mistaken policy.”
The Supreme Court and the Law
By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution. Charlottesville, Virginia: Michie Company, 1978.
Beginning this volume as an exoneration of the Court's activities since 1937, Professor Lusky gradually became convinced that the Court's record of achievement is significantly flawed and began to suspect that the justices of the Supreme Court have come to consider the Court to be above the law.
The catalyst decisions for Lusky were Roe v. Wade and Doe v. Bolton (the bellwether abortion cases announced on January 22, 1973), which signaled that the majority of the Court was ready to engage in freehand constitution-making to combat whatever they viewed as basic injustice in any field wherein they desired to intervene.
Reviewing representative cases following President Nixon's appointments discloses that at least two of three most recently appointed justices have been as willing as their senior colleagues to engage in constitution-making well outside the historic boundaries thought proper for the Court. Furthermore, the deaths of justices Black and Harlan have left the Court without a member highly sensitive to this judicial failure to make clear the constitutional limits of its own authority, with the possible exception of Justice Rehnquist.
By tracing the evolution of the concept and practice of judicial review, and its expansion beyond governmental power cases to definitive judicial review, Lusky suggests that “the Justices may have come to consider themselves to be masters of the Constitution rather than its servants.”
Courts and Social Science Evidence
“On the Limits of Social Science Evidence: Educational Policy Making and the Courts.” Urban Education 13 (July 1978): 127–146.
Courts have become deeply involved in adjudicating controversial social issues. Within the realm of education, many state and local educational officials now must carry out educational policies dictated by the courts. The courts' arbitration of otherwise unresolvable public issues has several implications for the judicial process. As one example, the courts have increased their consultation of new sources and forms of data.
Perhaps the most dramatic area where courts have assumed wholesale policy making functions is “public law litigation” or “class action suits.” The emergence of such litigation in the sphere of education (in the case of school finances, the location of school buildings, the treatment of handicapped students, the use of proper evaluation procedures, and the desegregation of schools) are examples of court efforts to apply legal precedents to large categories of persons rather than to select individuals.
The courts now need greater amounts and different kinds of information than in earlier legal proceedings. Ever more central to the adjudicative process, the court's task of “fact finding” continually grows. However, this does not necessarily imply the utility of social science in judicial decision making. In fact, “with a significant number of the educational suits which find their way before the courts, social science data are far from indispensable, and are more likely irrelevant. This is so, because it is not evident how social science evidence can inform the adjudication of constitutional principles.”
One limitation of social science data is that social science is in a continual state of flux and the findings in vogue at one time may be totally disavowed in another. Constitutional interpretation ought to be based on constitutional principles rather than on a particular data set. Otherwise, liberties and rights would be subject to the findings of social science. Courts should not use social science claims as the touchstone of constitutional interpretation because such data are not substantive in nature. Furthermore, the adversary, partisan nature of legal proceedings minimizes educational and information benefits to be derived from social science inquiry. Legal adversary hearings cannot judge whether social science testimony is adequate nor resolve contradictions that may emerge between conflicting bodies of evidence.
The social sciences cannot substantiate constitutional liberties; they may, however, play a proper role assisting the courts in righting wrongs by evaluating how well remedial programs work.
The Goals of the First Amendment
“Colonial Intentions and Current Realities of the First Amendment.” University of Pennsylvania Law Review 125 (April 1977): 737–760.
What were the basic purposes of the system of freedom of expression that America's founders sought to implement in the First Amendment together with its specific protections of freedom of speech, press, assembly, and petition? Also, to what degree have these original purposes of the First Amendment been realized under our current legal system?
Historical evidence reveals that American colonists intended legally protected freedom of expression to fulfill four functions: (1) to discover truth and advance knowledge and progress through free and rational inquiry or a “free trade in ideas;” (2) to allow a democratic, self-governing process by respecting the need to arrive at common decisions through freely expressed individual judgment (and, by implication, to allow individuals in nonpolitical areas of human learning and knowledge to develop religion, art, and science); (3) to allow for necessary social change without resorting to violence through a vital, rational, and peaceful discussion of issues. These first three functions of freedom of expression are encapsulated in the Continental Congress's letter to inhabitants of Quebec:
The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.
The fourth goal of free expression transcended social good and progress by stressing personal fulfillment and the realization of full individual potential.
The author judges that the “major discrepancy” between colonial intentions concerning free expression and today's system is the nature of the marketplace which gives some citizens more of a voice than others. However, he does not regard government regulation of press or expression as the answer: “the one thing it cannot be, and still remain a free system, is government controlled.” And further in the same vein: “The paradox of looking to government for regulation of a system that, by definition, is immune from government control presents one of the most difficult problems of our age.”
[The author's present discussion is complemented by his earlier article: “Toward a General Theory of the First Amendment.” The Yale Law Journal 72 (1963): 877–956.]
Freedom of Scientific Inquiry
“Science and the First Amendment: The Case of Wilhelm Reich.” Law and Liberty 4 (Spring 1978): 1–3, 6–8.
After escaping from Germany in the 1930s, the psychologist Wilhelm Reich conducted experiments in the United States from which he concluded that all living things were suffused with a sub-atomic primordial energy which he named “orgone energy.” Reich believed that neuroses, and even physical disease, were the result of the physiological blockage of the release of orgone into the body. Elimination of this blockage would rid the world not only of diseases such as cancer, but also of sociological malfunctions such as authoritarianism and to-talitarian governments.
His research was assisted by a number of doctors in the New England area. Reich constructed metal-lined boxes, called orgone energy accumulators, which he claimed collected the omnipresent energy for use in therapy. He published articles claiming success through orgone therapy in treating diseases such as cancer, and as news of this spread there was a demand for orgone boxes which Reich began to send to interested persons.
In 1954 the Food and Drug Administration maintained the accumulators were misbranded and adulterated within the meaning of the Food and Drug Act, and filed an action on libel of information seeking an injunction to prevent Reich and others from doing business in interstate commerce. Reich declined to enter an answer or appear in court, but wrote the judge that to participate “would, in my mind imply admission of the authority of this special branch of the government to pass judgment on primordial, pre-atomic cosmic orgone energy.” Moving by default, the government enjoined the defendents from further business and ordered the destruction and dismantling not only of the devices, but also of “certain listed descriptive literature.” When Reich ignored the injunction, he was found guilty by a jury and sentenced to two years in prison. He appealed arguing he was “engaged in basic scientific research which no agency of the Government had jurisdiction to interfere with or control.” The government replied that it had the power to prevent interstate commerce of devices of “alleged” therapeutic value if they were adulterated or misbranded. Reich's appeal was denied, his books were withdrawn from circulation, and his magazine and accumulators seized and burned. After eight months in prison, Reich died, late in 1957.
Franzen believes only two arguments might be advanced to treat scientific thought differently from other First Amendment speech: that it was never intended to protect demonstrable falsehood, and that science, unlike religion, offers objective proof so that there need be no objection to restrict the dessemination of demonstrably false scientific statements. But the Supreme Court has recognized the need to protect “some falsehood in order to protect the speech that matters.” And, even in the area of science, if we examine the case of the Copernican Revolution, it took almost 300 years to devise instruments to prove such concepts as “stellar parallax,” which Galileo had advanced centuries earlier. “Laboratory ‘proof’ of a theory has often followed rather than preceded its acceptance.” Since, it turns out, science is not as readily “objective” as many imagine it to be, government should allow it the same kind of First Amendment freedom as is given to religion and politics. “Orgone energy boxes cure cancer,” ought not to be any more liable to censorship than, “God will cure you if you pray” or, “Socialism will cure the ills of society.”
Protection of Dissenting Belief
“Yoder and the Free Exercise of Religion.” Journal of Law and Education 6 (October 1977): 419–472.
The Supreme Court decision in Wisconsin v. Yoder (1972) represents a great revolution in the area of free exercise of religion. Riga develops this theme by tracing the relationship between religion and education from the earliest days of the Republic to its current adjudications. Considerable attention is given to the question of state interest in education and the Court's various rationales for this interest.
Reynolds v. United States (1878) introduced a belief-action distinction enabling the Court to uphold a conviction against practicing polygamy. The Court upheld conviction of a practice said to be a tenet of the Mormon religion, by saying that the First Amendment classified opinion as absolute but that some actions were not absolutely protected since they could violate and subvert social order. However, the Court provided no practical test to distinguish actions which were from those which were not protected by the First Amendment. In the 1940 case of Cantwell v. Connecticut, the Court moved from a somewhat obfuscating “belief-action” criterion to a “clear and present danger” standard. Later, in Prince v. Massachusetts (1943), the Court refused to apply the latter standard in a case involving a member of a religious cult who claimed it a religious duty to violate the child labor law. In this case, the Court apparently made a decision without justifying it by showing how it followed from balancing interests. However, the clear and present danger test was reaffirmed in a number of subsequent decisions.
One of the troublesome issues of the Yoder case is that the Court involved itself in determining whether the religious beliefs professed were truly held. Justice Douglas recognized this to be a step backward from the more liberal standards expressed in United States v. Seeger (1965) and Welsh v. United States (1970). In these cases the Court had extended military exemption to nontheists who opposed the war for philosophical rather than religious reasons. Justice Douglas could see no reason to refuse a similar exemption from secondary education. The nontheist should be no less protected than a religious dissenter from claiming a bona fide exemption.
The Court did not face the distinction between a philosophy and a strong commitment to an established religious belief. Nevertheless, the issue is important since it is quite apparent that a judicial category which requires membership in an organized traditional religious group as a condition for exercise of First Amendment rights is constitutionally suspect.
Law vs. “Liberty” and “Property”
“Of ‘Liberty’ and ‘Property.’” Cornell Law Review 62 (1977): 405–444.
We tend to view the Constitution's Fourteenth Amendment as limiting the separate states' actions in much the same way that the Bill of Rights limits the national government. Few observers believe the language of the Amendment has played a significant role in its historical evolution, but rather that “behind the words. . . are postulates which limit and control.”
These postulates have evolved over time from conceptions of vested rights and laissez-faire economics to more recent concerns for representative democracy, equality, and individual dignity. This debate has tended to blur any distinction between equal protection and substantive due process. The equal protection clause forbids few discriminations that are not similarly forbidden by the due process clause of the Fifth Amendment. “The history of the Fourteenth Amendment has always been the history of the due process clause.”
An overriding consensus viewed every individual “interest” as encompassed within the “liberty” and “property” secured by the due process clause and protected by the “baseline requirement of rationality.” More recently, the “right-privilege” distinction, the last barrier to such a consensus, has completely fallen apart through theoretical weakness.
Several recent cases have significantly affected the concepts of liberty and property as once defined. Prior to Board of Regents v. Roth (1976), “Supreme Court definitions of ‘liberty’ and ‘property’ had amounted to taking the words ‘life, liberty or property’ as a unitary concept embracing all interests valued by sensible men.” Now each word must be examined separately, and, “so examined, we find that they do not embrace the full range of state conduct having serious impact upon individual interests.”
This break with tradition has altered the nature of the interests (such as the terms ‘liberty’ and ‘property’) secured by the due process clause. To examine these terms involves a lengthy discussion of “liberty,” including its historical origins, something of its development within our language, its relationship to substantive due process as equal protection, the narrowing of the meaning of the term through the gradual process of exclusion, the importance of Paul v. Davis, and the Burger Court's efforts to define the “New Liberty.”
A similar analysis of the term “property,” especially relating to entitlements in recent jurisprudence, would emphasize the case of Bishop v. Wood as an example of this issue. What Monaghan fears from the above history and analysis is that the “gradual process of exclusion,” while it has not yet resulted in much narrowing of the “liberty” and “property” protected by due process, derives from cases capable of “broader mischief.” In short, “They are capable of generating doctrine and results that are inconsistent with long standing conceptions about the meaning of ‘liberty’ and ‘property’ in a ‘Constitution for a free people.’”
Crime Demographics and Law
“Crime and Punishment in the Nineteenth Century.” Journal of Interdisciplinary History 7 (Winter 1977): 477–491.
The study of nineteenth-century crime and punishment, and hence social policy, has been hampered by the quality of crime statistics during that century. “There has been a general lack of interest in systematically describing the criminals, or the arrested, themselves: their social origins, demographic characteristics, their offenses, and their treatment by the judiciary.”
We now need to focus on the criminals and their treatment,” and study materials that can clarify questions about crime and the criminal. Significant materials are the jail (or gaol) registers of various municipal areas, which the author has used for Ontario, Canada, but are widely available for large parts of Canada, much of the United States, and parts of Great Britain. These registers with their data offer the opportunity for quantification and a collective portrait, of those accused of crime based upon such factors as religion, ethnicity, class, occupation, residence, and other demographic information.
The registers permit a direct approach to such nineteenth-century stereotypes as viewing criminals often as members of a destructive, self-perpetuating class, homeless and rootless, urban-based, immigrant, intemperate, and ill-educated. The registers help to delineate the lifestyles of criminals, but also other groups such as prostitutes, drunkards, and vagrants.
As a final consideration by way of example about what may be gleaned from such registers is an analysis of one year's registers (1867–1868) for Middlesex County, Ontario.
Crime in the county tended to be over-whelmingly (two-thirds) urban-based and very much related to the lower classes. Crimes against property and vagrancy were the most common, totalling more than half of all arrests, while alleged offenses against persons, prostitution, and crime related to drink, comprised over a third of the crimes. (It is interesting that today crime against property runs at a seven to one ratio as compared to the two to one of a century ago.) Vagrancy was mainly female, while for many poor the jail was a place of refuge. Like the stereotype, the Irish were often arrested for crimes related to drinking. White collar workers and small proprietors were more often arrested for offenses against other persons in contrast to the relative stability of the skilled worker, indicating the tensions of those groups most subjected to the changes accompanying modernization.
It is also clear that punishment was not administered equally. Irish Catholics and women had a higher conviction rate and a greater severity of punishment. The relationship between crime, its punishment, and the social order may be clarified through examining jail registers.
Is Legal Punishment Good?
“The Ethical Justification of Legal Punishment.” American Journal of Jurisprudence 22 (1977): 1–19.
Just what is the problem involved in justifying legal punishment, and how do we evaluate the various proposed solutions to this problem?
First we must define crucial terms, the most central being “punishment” which:
Must be unpleasant, inflicted on an offender because of an offense he committed, deliberately imposed by an agent authorized by the system of rules that has been offended.
Historically, two major traditions have justified punishment. The first, the consequentialist or utilitarian tradition, asks whether a punishment maximizes the general welfare. The weakness of the utilitarian view is the obscurity of the standard (“the greatest good of the greatest number”). In addition utilitarianism permits the punishment of innocent men if it would yield a net social benefit.
Retributivism is the second major tradition justifying punishment. A retributive theory of justice punishes simply because the criminal deserves punishment and must “pay” for his crime. Pure retributivism is found in the Old Testament and in the writings of German idealists such as Kant. Most modern ethicists, however, find retributivism distasteful, even if it is not logically as weak as consequentialism.
Legal punishment requires first a workable practical psychology and secondly an understanding of the kind of good a well-ordered community requires.
The Anglo-American tradition fails as an adequate psychology because it attempts to explain mental activity in mechanistic terms. A sound philosophy of law requires a model of the mind which can grasp universal meanings. A proper theory of practical psychology must also give an account of willing. “Willing” commits oneself to an action because it participates in some universal good.
The second element of a sound legal punishment theory is a clearer understanding of the good of the community and not just the good of individuals. Consequently, the “primary reason for state laws is to promote the community good of the state.” Thus, to justify legal punishments we focus not primarily on the criminal's good or that of other individuals, but rather on maintaining good order in a civil society. Consequently, rehabilitation, reformation, education, or expiation can't be the basic rationales for punishment. Rather, just punishment aims at maintaining good order in society and may contain both retributivist and consequentialist elements.
Punishment and Behavior Modification
“Behavior Modification as a Punishment.” American Journal of Jurisprudence 22 (1977): 19–54.
What are the consequences of using behavior modification as punishment in criminal correction programs? If coercive behavior modification programs are limited to persons who have committed crimes, we can regard such programs as punishment. An imprisoned criminal need not give consent to punishments for society to impose them. How, then, is behavior modification a punishment, and what moral limits do various theories of punishment impose on the use of compulsory behavior modification?
Behavior modification constitutes punishment because:
. . . the individual is deprived of a right to participate, on the same basis as his fellow citizens, in the criminal justice system, conceived with Hart, as a system of social control which maximizes individual freedom.
A system of criminal punishment (as opposed to a preventative system), says Hart, maximizes freedom since it defers action until a harm or a violation of the law has occurred. It functions by announcing standards of behavior, attaching penalties for deviation, and then leaving people free to choose. This can be contrasted with the “manipulative techniques of the Brave New World” which effectively deprive people of the choice to obey the law or not. In particular, this could prevent someone from expressing his moral disapproval of a law through civil disobedience. When employed as a punishment, behavior modification deprives the criminal of a portion of his “responsible self-hood.”
Next, can utility and fairness justify us in imposing behavior modification? Since a prisoner cannot freely give his “consent” to such treatment, “. . . a behavior modification program may be presented to a convicted person as an alternative only if it would be justified on utilitarian and fairness grounds if imposed without such a choice.” Imposing behavior modification would be justified on utilitarian grounds if “the aggregate suffering imposed by the punishment doesn't outweigh the suffering to society of the crime unchecked.” Fairness bids us to ask whether “the society considers the specific offense sufficiently grave as to warrant the imposition of this punishment on this person. . .”
Another argument holds that if the prison term is justified on utilitarian and distributive grounds, then “there could be no objection to allowing the criminal to choose some other punishments (such as behavior modification).” This, however, would allow someone to opt out of the criminal justice paradigm which interprets action as having a moral, responsible dimension. Action now becomes mechanically or therapeutically devoid of personal choice—a development which could augur grave consequences for our political system.
Punishment vs. Pure Restitution
“Criminal Remedies: Restitution, Punishment, or Both?” Ethics 88 (1978): 348–357.
Some have advocated a pure restitution theory of criminal remedies. Randy Barnett, for example, would reduce all criminal wrongs to torts, which he would then rectify by having the criminal compensate his victim [“Restitution: A New Paradigm of Criminal Justice” Ethics 87 (1977): 279–301]. No longer would criminals be made to “suffer” for their wrong-doing; making good their mistake is all that would be required.
But is this right? Can we treat crimes as mere torts? Does compensation alone right the criminal wrong?
Barnett's argument has correctly shifted the focus away from public law toward the private relationship created by the criminal transaction. Nevertheless, the theoretical questions remain. Can we eliminate punishment? Or does crime call for restitution and punishment?
Indeed, what Barnett has left out of the account is the mens rea element, or criminal intent: the criminal has not simply harmed his victim; he has affronted his dignity. He has intentionally used his victim, for his own ends. The inadequacy of restitution as the sole remedy for this wrong appears in the case of the wealthy criminal, or victim, or when both are wealthy. In such cases the remedy of compensation simply cannot reach the affront to dignity that is the criminal wrong.
In order to develop a more satisfying account of criminal remedies, we must more thoroughly analyze what the original criminal transaction involved. If justice requires treating all parties as equals, the remedy should return precisely what the original wrong took away. In torts cases we do this by noting that the original act was “wrong” only in the sense that it caused wrongs or harms, and we remedy it by compensation. Thus, the remedy reflects the original “wrong” by undoing it. But in the case of crimes, compensation will not be equal to the whole of the wrong involved, which extends beyond the mere causing of harms. In addition to creating in the victim a right to compensation, then, the criminal act creates a right to punish the criminal; for only compensation and punishment (the victim's use of the criminal) will be equal to that original wrongful act.
Thus from state-of-nature theory, and arguing on deontological grounds, we can derive restitution as the just remedy for torts, but restitution and punishment as the just remedy for crimes.
Does Punishment Fit the Crime?
“Retribution and the Ethics of Punishment.” In Assessing the Criminal: Restitution, Retribution, and the Legal Process. Edited by Randy E. Barnett and John Hagel III. Cambridge, Massachusetts: Ballinger Publishing Co., 1977, pp. 211–230.
Critical ethical reflection invalidates retribution as an ethical basis of legal punishment. That wrongs call for retributive punishment (visiting the “same” or a “proportionate” wrong back on the wrongdoer in an “eye for an eye” fashion) has neither been universally accepted nor is it morally defensible. Retribution and its kindred notion of desert (i.e., the criminal “deserves” to be punished) futilely claims to undo past wrongs. But “the past is not a blackboard, punishments are not erasers, and the slate can never be wiped clean: what is done is done and cannot be undone.”
Three movements have weakened the appeal of retribution in punishment theory: the eclipse of Christianity, the impact of humanitarianism, and the emergence of depth psychology in the works of Dostoevsky, Tolstoy, Nietzsche, and Freud. These thinkers reveal how closely the “law-abiding” citizens resemble the criminal in demanding retributive punishment since such punishment serves as a cathartic release for their darker, unedifying emotions.
The strongest argument against retributive justice is that “punishment can never be deserved” nor wholly proportionate to the crime (as in seducing a child, genocide, or forgery). Not even capital punishment for murder is a commensurate punishment. The sudden death of the murdered victim differs from the criminal's protracted trial and long imprisonment under a death sentence. Desert in punishment theory is a confused notion impossible to calculate. In fact, devising “proportionate” punishment has produced “a veritable pornography of punishment and allowed the sadistic imagination rather free rein” as when Thomas Jefferson urged as a punishment for a polygamous woman: “cutting through the cartilage of her nose a hole of one half inch in diameter at the least.”
Even if retributive punishment could be proportionate, it does not follow that it is ethical or ought to be imposed. No human deserves torture or punishment. Although retribution is untenable as an ethical basis of punishment, punishment itself may possibly be tenable to fulfill other functions such as deterrence or reform. We should, however, be wary of too readily approving restitution (through fines or imprisonment) as a substitute for retribution. Restitution is as much a chimera as calculating “exact” justice. No restitution can restore the status quo ante in the case of raping a child. Restitution, further-more, encourages judges to be arbitrary in meting out “appropriate” penalties.
Free Market Justice
“Justice Entrepreneurship in a Free Market.” Paper presented at the Libertarian Scholars Conference, Princeton University, October 1978.
Some critics of the idea of free market justice have argued that it is incompatible with the rule of law. Without government to impose a uniform system of procedures and standards, such critics envisage a chaotic patchwork of competing agencies, or perhaps even various criminal bands imposing their wills in the name of justice. But free market justice does not oppose the rule of law. Principles of justice are derived from natural law, and therefore fall within the province of human knowledge. Neither the specific content of the law (which can be deduced from a theory of property rights) nor the formal aspects of the law depend upon the existence of government.
“Where, then, is the weak link that opens the door for a monopolistic government?” One link is the concept of “procedural rights” upon which Robert Nozick, for example, in Anarchy, State, and Utopia bases his notion of the “ultraminimal state.” Smith agrees with the idea of restitution as developed in Randy Barnett's “Whither Anarchy? Has Robert Nozick Justified the State?” But in contrast to Nozick, Smith suggests “The important social relation that generates the whole question of reliable procedures is not that between the Victim and the Invader, but the relationship between the Victim and impartial Third Parties.” The crucial idea is that “It is for his own safety, to prevent violent Third Party intervention in his quest for restitution, that the Victim must concern himself with matters of legal procedure.” The problem is explored, not around the “phantom” notion of “procedural rights,” but rather around the concept of “justice entrepreneurship with its two essential ingredients: restitutive risk and the presumption of invasion.”
Much of a Justice Agency's service is entrepreneurial in the sense that the Agency assumes the burden of risk that accompanies the use or threat of physical force in a free society. Thus, “A client contracts with a Justice Agency not only because the Agency is more efficient in obtaining restitution, but also because the Agency is more likely to overcome public suspicion that the force used to obtain restitution is of invasive rather than of restitutive nature. The degree to which an Agency can minimize this risk is a measure of its reliability and, ultimately, the source of its profit.”
Analysis can unravel this problem in terms of Crusoe, Friday, and the introduction of a Third Party. Fundamentally, there is a lack of coordination (knowledge) between the Victim and Third Parties, and thus, the problem, “How can the Victim regain what is rightfully his, by force if necessary, and avoid being branded in the public eye as a common Invader?” The transfer of this risk is the major function of a free market Justice Agency, and that which gives it its entrepreneurial quality. This alertness to opportunity is at the heart of entrepreneurship. This, in turn, leads to the conclusion that the Agency must offer a public verification of its work; the trial must be public with public access.
A number of procedures necessary for such proceedings are available. The major point is not procedural, however, but to bring the whole concept of justice into the “realm of deductive natural law,” Smith concludes that “there are no serious gaps in the libertarian paradigm of natural law and noncoercion, such that a monopolistic government must step forward to fill these gaps.” Any Agency, even Nozick's dominant one, ought to be “gauged by the entrepreneurial standard of public verification.” Any Agency unwilling to do this should not be regarded as legitimate.
Justice in the Market
“Justice, Inc.: A Proposal for a Profit-Making Court.” Juris Doctor (March 1978): 32–36.
The remedy for the interrelated problems of securing justice through governmental courts—congestion, delays, high costs, and unfairness—may well be a competitive “free-enterprise court system” operated by private judges on the principles of voluntarism and cost-effectiveness.
Statistics confirm that American federal and state court systems are not efficient institutions to mete out justice fairly and equally to all would-be litigants. In the United States there is only one federal judge for every 1,000 attorneys. At any one time, the average federal district court judge handles around 600 civil and criminal cases. Under this congestion, the courts must terminate without trial 91 percent of all federal civil cases. Under the government court system many deserving civil cases never get tried, thus depriving the plaintiff of his constitutional right to trial. The government monopoly in dispensing justice leads to rationing justice. The “uncertainty, delay, and excessive costs attributable to our inefficient system of justice” disrupt individual lives and prevent the economy from growing at its full potential.
To cure the many inconveniences of government courts, the author recommends a free market court system called the National Private Court (NPC), which would guarantee a three-month time limit for litigation; allow parties to select those judges best qualified to hear their suit; follow federal rules of evidence and civil procedure; and permit one appeal.
The NPC would have the advantage over binding arbitration of not running the risk of unwanted compromises; the NPC would surpass the quality of litigation in congested government courts because “the parties pay for and get the amount of skilled judicial services they need from judges experienced in the field.” The profit motive would also insure fairness from the private judges since they can be expected to treat attorneys fairly if they wish to be rehired in other matters or suits. The NPC, by removing economic restrictions against justice, would allow hiring expert witnesses on a contingency-fee basis and selling shares in civil actions to permit indigent litigants to afford bringing suit.