Liberty Commentary

Criminal And Civil Law In Free-Market Justice

by Wendy McElroy, DailyAnarchist

What is a natural right as opposed to a right acquired by contract?

Natural rights begin with the idea that a human being is a form of property. The question becomes “who is the owner?” There are three possible alternatives: each person is a self-owner; someone else owns him (slavery); or he is an unclaimed good.

Natural law and common law treat the individual as a self-owner, who also has a strong presumed right to whatever he peacefully produces or acquires through his own labor, such as crops or a chair.

This conclusion may be derived from God, human nature, or logic, but it leads to the same legal place: it is inherently wrong to violate the person or property of a peaceful human being.

Otherwise stated: I do not need to contract with you in order to rightfully prevent or punish your assaulting me, raping me, stealing my purse, or burning down my home. Violent transgressions against my person and property are a priori wrong and should be treated as crimes.

By contrast, contractual rights are ones I acquire through agreement with another person. For example, if I hire a man to paint my house and give him a deposit of $500, then I have a right to performance or to have my $500 back.

Nothing in natural rights gives me a claim on the man’s time, labor, or wallet. I acquire the claim because of his agreement and acceptance of a “consideration.” The consideration is important because, otherwise, the “contract” is not an exchange but merely a promise, which has no legal force. Thus, contractual rights are legally enforceable claims that I acquire through a mutual agreement.

Roughly speaking, the difference between natural rights and contractual ones is legally recognized in the difference between criminal and civil law. (The current court system is far from a perfect expression of this division; but, then, the current system is far from perfect.)

Would a free-market system respect the distinction between natural and contractual, including the implications of the distinction that have evolved through common law? No one knows for sure, and competing visions have been sketched.

For example, at one time, the 19th-century touchstone anarchist Benjamin Tucker advocated a “society by contract.” When he became a Stirnerite egoist, Tucker concluded there was no natural right to live unmolested by others, but that such a right could be acquired only by contract. And, so, in a Tuckerian legal system I might well need to contract with others not to assault or to rape me.

Modern libertarians like legal scholar Randy Barnett have suggested that allviolations of right be considered as civil violations, to be remedied and restituted as such.

Almost certainly, however, some if not most free-market defense agencies would ground their services in the prevention and punishment of crimes against person and property. They would consider murder and rape to be inherent wrongs, if for no other reason than that the vast majority of people throughout history and across cultures have viewed them as such. After all, it is “the vast majority of people” who would be their customer base. The adjudication of contract disputes might well be a separate service performed by a separate agency.

The procedural differences between criminal and civil actions are also likely to be preserved, because they evolved and have been proven over time to be guarantees of fairness. In criminal matters, the procedural protections include that the accused is innocent until proven guilty; the accuser bears a burden of proof beyond a reasonable doubt; the accused has a right against self-incrimination; and a “not-guilty” verdict cannot be appealed. The standards of evidence and bar of proof are raised high because the severity of the offenses is accompanied by equally severe penalties.

Moreover, it is common for punitive damages or punishment to attach to some criminal acts; for example, crimes committed with malicious intent. Thus, a man who laid in wait to beat up another person might be punished more than a drunk who mistook a friendly gesture for a hostile one.

By contrast, the procedures in civil cases are “loosened” to reflect the lesser severity of the offenses. For example, the plaintiff (accuser) bears the burden of presenting a case that the “preponderance of the evidence” supports. But once the plaintiff has presented such a case, the burden of proof shifts to the defendant. Other standards of proof and protections are similarly weakened, and punitive damages are uncommon.

There is at least one way, however, in which the procedure of free-market courts would differ markedly from the present system. Currently, a private party must file a lawsuit in order to bring a civil case, but the statefiles litigation in criminal ones; this is because society itself, and not an individual, is considered to be the victim of a rapist or thug.

Thus, criminal cases are often pursued even when the harmed individual does not want to press charges. In a free-market system, both civil and criminal complaints would have to be initiated by private parties. Moreover, those parties would need to have “standing”; that is, it is the harmed individual who has the right to press or waive charges.

(Note: there are exceptions. For example, an “interested” third party — presumably a guardian or relative — could speak on behalf of an infant or a coma patient. Equally, a third party would have to speak on behalf of a murder victim.)

In short, I believe many of the procedural aspects of the current system would prevail in a free market, including the division between criminal and civil law.

In my opinion, free-market defense agencies would not compete primarily on the basis of whether they sanctioned rape, adjudicated contracts, or distinguished between the two; the customer base would demand both services and such a distinction. The competition would be in how defense agencies adjudicated cases and in which penalties or punishments could be imposed.

Consider the how of it. Without exploring the complex topic in depth, we could list a multitude of possibilities regarding how a case could be adjudicated. They include

• a permanent panel of legal experts whose verdict defense agencies agree to accept;

• a panel of religious experts, as in Talmudic courts;

• a single professional judge or religious expert;

• a “wise man” respected in the community who is accepted as an adjudicator by both parties (for example, many libertarians would accept Ron Paul or David Friedman);

• a randomly selected jury, convened voluntarily or through payment;

• a permanent and trained jury;

• binding arbitration.


I do not believe the basic services provided by private defense agencies will vary in their fundamentals any more than the services of private police forces vary significantly. After all, the fundamentals of justice demanded throughout history have remained relatively constant.

Moreover, I believe most defense agencies would retain the distinction between criminal and civil offenses as well as incorporating tried-and-true protections of fairness. The two areas where wide differences are likely to be observed are in the adjudication mechanisms and in the sanctions or punishments imposed.